Social state in the modern world - foreign experience. Coursework: foreign experience in the formation of social policy
Another note from the series “Jurisprudence for Dummies”. Let me remind you that I am writing these articles for people without a legal education who want to understand what law is, how it regulates our lives, where laws come from, how courts work in Russia and other interesting and important things. I look forward to your responses and comments - what is good, what is bad, what is unclear, what else is worth saying.
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The division of law into private and public is one of the most important issues in legal science. It most clearly reflects the essence of law and the state, the issues that they solve, and the methods by which they do it. So let's look at this issue in more detail.
Difference between public and private
The division of law into public and private - ius publicum and ius privatum - began in Ancient Rome. The Roman jurist Ulpian said that public law relates to the position of the state, and private law to the benefit of individuals. Since then, essentially nothing has changed.
The word "public" has two meanings. In the first case, we are talking about something that happens in the presence of the public, something open and public (“ public scandal», « public speaking"). In the second - about something that exists for society (“public library”, “public place”). The term "public law" is naturally associated with the second meaning.
The task of this part of the law is to protect the interests of the entire society. It is assumed that he has common interests- in stability, development, comfortable and safe life - and the state must protect these interests.
Public law establishes how the state is structured, how government bodies are formed, what their rights and responsibilities are, and what violations of the law are so dangerous that they need to be identified and investigated at public expense. Public law consists of the following branches of law: constitutional, administrative, criminal, criminal procedure, civil procedure and others.
Main features of public law:
1) Legal relations in them, as a rule, arise between people or legal entities on the one hand and the state and its representatives on the other. Such legal relations are called “vertical” because their parties are in an unequal position. Investigator and criminal, judge and participant in the trial, tax office and the taxpayer - one of them has more power than the other. In addition, legal relations in public law can arise between different representatives of the state. There, the parties are usually also in an unequal position - the prosecutor and the policeman, the judge and the investigator, the president and the minister of defense. Although there are also relationships between equal subjects - for example, two investigators from different regions, one of whom gives instructions to the other.
2) Majority legal norms in public law - imperative. Rights and obligations are usually strictly defined by law. As the ancient Roman jurists said, jus publicum privatorum pactis mutari non potest (“public law cannot be changed by private agreement”). And if entrepreneurs, when concluding a transaction, can agree in a way that is more convenient for them, then in the field of public law this is not allowed. For example, a traffic cop and a driver should not agree on anything themselves outside the framework of the procedure prescribed by law.
3) If a person or organization violates the law in the public legal sphere, then, as a rule, it is the state and its representatives that will either punish the violator themselves or initiate legal proceedings. Even if specific people suffered from a violation of the law, they have no power here.
And private law protects the interests of private individuals. The main idea of private law is that individual members of society have their own interests, and the state protects them, since by protecting each member of society, it protects the entire society as a whole. Here, individuals and legal entities themselves, without the participation of the state, enter into legal relations with each other and themselves, basically, determine mutual rights and obligations. If their rights are violated, they themselves go to court for protection. And if the court recognizes their rightness, then the damage is recovered in favor of the victim, and not in favor of the state. Private law consists of branches that serve the interests of private individuals - civil, family, labor, private international law. Conditionally existing business law can also be written into this category.
Main features of private law:
1) Legal relations in them, as a rule, arise between individuals or legal entities on the one hand and individuals or legal entities on the other. Such relationships are called “horizontal” because their parties are in an equal position. The seller and the buyer, the employee and the employer, one spouse and the other spouse - legally they are equal and one has no power over the other.
2) Most of the legal norms here are dispositive. The parties usually agree on mutual rights and obligations themselves.
3) If someone breaks the law in the private legal sphere, then the victim of his actions must go to court and prove that he is right.
From the names “private law” and “public law” come many words and phrases that show the meaning of a legal norm or a method for solving a problem: “publicly significant functions”, “public legal regulation”, “private legal relationship” and etc. If in some legal situation something “public” is mentioned, then the law here gives someone the authority to protect public interests. Moreover, this will not necessarily be a representative of the state. For example, notaries and lawyers are considered to perform “publicly significant functions”, which means that many rules of private law do not apply to them.
The most obvious criterion for dividing rights into private and public is the method of judicial protection. If a person or organization has violated a law in the field of public law, then it does not matter who was directly harmed. The state representative must go to court and prove there that there has been a violation of the law.
Thus, in a criminal offense from which a public legal relationship arises, there are often not even victims. For example, one person gave a bribe to an official, and in return he did something illegal for him. Both sides are happy, and no one will complain to anyone. However, such a transaction violates the interests of society, so the law establishes punishment, and state representatives investigate such cases. The same applies to the illegal purchase and sale of weapons and drugs - it does not matter what the parties themselves think and that there are no victims. From the point of view of the state, the whole society is affected.
Sometimes it happens that there is a victim (in cases of theft, robbery, grievous bodily harm), but he has no claims against the criminal. State representatives can take this into account, but are not obliged to. From their point of view, crime is dangerous not only for the victim, but also for the entire society.
Fragment from Dovlatov’s story “Zone”:
“They took me at the dance. He hinted at one with a scraper under the ribs.
- Make ends meet, or what?
- Where are the ends?! Survived, bastard. He, the bastard, shouts at the trial: “I forgive Erokhin!” And the prosecutor refused: “You do, yes, but society cannot forgive...”
This quote gives a rough idea of public law. It operates precisely according to this principle - “society cannot forgive”, as well as “society needs” or “society allows”.
If a law in the sphere of private law is violated, then the victim himself applies for judicial protection and without his activity nothing will happen. Let's say you were sold a low-quality product, but they won't accept it back and don't want to return your money. Here the state seems to be telling you: you yourself decided to enter into a relationship with this seller, I won’t do anything for you here. But if you prove your case in court, then I, the state, will protect your rights and collect money from the seller. That is, the state will only play the role of an independent arbiter, and then help to recover damages if the court finds that you are right.
However, the method of judicial protection does not always help to separate private law from public law. In particular, if in public legal relations between a citizen and the state the law was violated by representatives of the state, then the injured citizen must go to court himself. For example, the Federal Tax Service wrote off excess money from an entrepreneur’s account, or the Pension Fund underpaid a veteran’s pension. The first case is tax law, the second is law social security. Both of these branches belong to public law. If any person or organization violated the law here, the state, of course, would actively protect its interests. However, here, on the contrary, representatives of the state behaved incorrectly. In this case, protecting their rights and freedoms is a personal matter for citizens. And in the end, the entrepreneur and the pensioner must go to court themselves and prove their case.
State in private legal relations
It would seem that if the state is involved in any legal relations, then they will certainly be public. However, this is not always the case: sometimes the state seems to forget about its public functions and takes the place of an ordinary citizen or legal entity. Let's try to figure out why this happens.
As you know, a state needs a lot of things for its activities - weapons and uniforms for the army and police, buildings for ministries and departments, tables, chairs and computers for officials and judges, and most importantly - people who will work for this state. Without all this, the state simply will not be able to exist and fulfill its main task - to protect law and order.
How should the state get all this? There are different options here. It happened that it took these things from citizens directly. In particular, in ancient Athens, rich people were obliged to build and equip ships to protect the city, and all free citizens periodically worked for free as officials, judges and police officers, thus fulfilling their duty to society.
But such a system turned out to be not very convenient and fair. After all, citizens are not required to understand how to build ships, investigate crimes, or guard borders. And, besides, it is difficult to evenly distribute these responsibilities.
As a result, another idea turned out to be more viable: the state takes part of the income from citizens in the form of taxes, and then uses it to purchase the necessary things or hire professional workers. And if the relationship between the state and citizens regarding taxes is a public legal relationship, then when the collected money is spent, private legal relations also arise.
After all, the state does not oblige anyone to build or produce anything for itself. It invites everyone to enter into a deal with it, and citizens and legal entities voluntarily enter into these relations. And such relationships are no different from the relationships that an individual and a legal entity enter into with each other - purchase and sale, rent, provision of services, labor relations. The state can be a seller and a buyer, a contractor and a customer, a tenant and a lessor, it can cause property and moral damage and act as an employer.
In all these cases, the state almost does not use power, but plays the role of an equal partner of individuals and legal entities. This is how private legal regulation begins to operate.
The state and its parts (regions, cities) in civil law are called “public legal entities”. And if such a public legal entity enters into an agreement - for example, the city of Voronezh orders a construction company to renovate the city hall building - then in the event of a dispute, the court will hear the case according to the norms of the Civil Code. He would have handled the case in exactly the same way if the city had been an entrepreneur or a private company.
Mixed private-legal and public-legal regulation occurs during military service. Part of the armed forces is formed according to the same principle from ancient Athens, when citizens donated “in kind” to the needs of the state. In particular, men who have reached conscription age must serve in military service for a year. But the other part of the army is formed on on a voluntary basis- people decide for themselves whether to work for the state or not, and voluntarily enter into these labor relations. Officials, police officers, prosecutors and judges are recruited in the same way - people are not obliged to work in these positions, but are voluntarily hired or fired. True, during work they have many more responsibilities and much fewer rights in relations with the employer than employees of private companies. So here public legal regulation is combined with private law.
Lyrical digression: platonic legal relationships
Regarding transactions in which the state is involved, it is important to understand one thing. In this situation, as in many others, several different legal relationships may arise at once, and they should not be confused.
The relationship between the state and its business partner under the contract is a private law relationship, and here the parties, in theory, have the right to establish mutual rights and obligations themselves. But the relationship between the state that enters into an agreement and the official who acts as a representative of the state is already a public legal relationship. Such relationships are strictly vertical, and there is no talk of any equality. An official is obliged to strictly follow the rules prescribed by law and does not have the right to choose (according to at least, officially) entrepreneurs familiar to him to fulfill the order.
The same applies to the relationship between citizens and the country's leadership, which entrusted this transaction to an official and is responsible for his actions. Here the relationship is also public law and citizens have the right to demand from the country's leaders that they make agreements in accordance with their, the citizens', wishes. This, at least, should happen in theory.
In practice, officials often say that all this does not concern citizens, and even classify the terms of such agreements. One of these stories happened not so long ago. In 2014, the Federal Road Agency (Rosavtodor), on behalf of the Russian Federation, entered into a concession agreement with RT-Invest Transport Systems LLC. The essence of the agreement was that the state transferred to this company some of its public legal functions for collecting taxes. Under the contract, the company could collect money from trucks weighing more than 12 tons for traveling on the country’s roads, receive remuneration for this and transfer the collected money to the budget. The money collection system was called “Plato”.
This type of agreement is regulated by the Law “On Concession Agreements”. Unfortunately, the law allows the terms of such agreements to be declared “trade secrets.” As a result, both parties to the agreement refused to disclose it.
After a scandal caused by problems in the Platon system, inflated tariffs and protests by truckers across the country, the text of the agreement appeared on the Internet. But only when the Anti-Corruption Foundation at the beginning of 2016 demanded that the Moscow Arbitration Court declare the agreement invalid, the court ordered the text of this agreement to be officially disclosed in order to familiarize itself with it.
I note that a private company entering into a deal with its own money may well say that this is its own business, and it is not obliged to report to anyone. But from representatives of the state who spend citizens' money or allow someone to collect taxes from citizens, this sounds strange. Unfortunately, officials often do not separate private law from public law, and do not always understand that their activities are not completely commercial, but must also meet public interests.
The boundary between private and public
The boundary between private and public law is very fluid and may change. Many areas of life were regulated first by public law methods, and then by private law methods, and vice versa. And even at the same moment, any branch of law may contain separate elements of both private and public law.
For example, in civil law many rules are established imperatively. It clearly states in what form this or that transaction is concluded - oral or written, whether it requires notarization or state registration. And the parties cannot deviate from these conditions. This is how public legal regulation manifests itself - the state protects the interests of society, which needs predictability and security in the transfer of property from one person to another.
It is interesting to trace the combination of private and public principles in criminal law.
In the early stages of the development of any society, what we today call criminal law was referred to as private law. Both ancient Roman laws and laws speak about this European countries early Middle Ages, and the most ancient law of our country is “Russian Truth”.
So, if a resident of Ancient Rus' believed that a crime had been committed against him or his loved one, he himself went to court and himself proved the guilt of the criminal. The convicted criminal paid compensation to the victim or his relatives (in Russkaya Pravda this was called payment “for the offense”). But then gradually everything higher value began to acquire a fine in favor of the prince (it was called “vira”). Accordingly, the further, the more the issues of searching and punishing criminals began to be taken into the hands of the prince’s subordinates, and the victim ceased to actively participate in this. Thus, the private law principle was supplanted by the public law principle.
Today in criminal proceedings we still see both of these principles, but the second predominates. The basis of the process is the desire of the state to collect “viru” from the criminal - that is, either to fine him, or to imprison him, or to punish him in another way prescribed in the Criminal Code. At the same time, the victim of the crime, if there is one, can receive money from the criminal “for the offense” - that is, file a civil claim within the framework of the criminal process and recover damages provided for in the Civil Code.
Another echo of ancient times in our Criminal Code are three articles of the so-called private prosecution:
Part 1 Art. 115 “Intentional infliction of minor harm to health”
Part 1 Art. 116 "Battery"
Part 1 Art. 128.1 “Slander.”
According to them, everything happens as it did a thousand years ago: you need to go to court yourself and prove the guilt of the criminal yourself. True, the criminal, if you prove his guilt, will still face “vira” - a fine in favor of the state, compulsory or correctional labor. But you also have the right to file a civil lawsuit and recover money from him if you prove that the crime caused you any losses.
Plus, there is some middle option - private-public prosecution cases. This is when the case cannot begin without a statement from the victim, but after the statement it does not stop.
Another example of the changing boundary between private and public law is the production of goods and services. Throughout human history, people have decided for themselves what and how to produce, to whom and what to sell, from whom and what to buy. This is the basis of the market economy that dominates most modern countries.
But in the Soviet Union, industry, agriculture, services and trade were removed from the sphere of private law and transferred to public law. The founder of the Soviet state, Vladimir Lenin, wrote about this: “We do not recognize anything “private”; for us, everything in the field of economics is public law, not private.”
Now, as before the October Revolution, any person can engage in the production of goods or the provision of services by hiring workers for this, investing their money or taking out a loan, after which they may or may not receive a profit. But in Soviet years this activity, with rare exceptions, was a matter of the state. The entire economy became planned, and almost all economic relations became public. And just as now acts that a person wants to commit instead of the state are criminally punishable (for example, depriving someone of their freedom), so in the Soviet years any production and trade engaged in by private individuals was severely punished.
For citizens there were Art. 153 of the Criminal Code of the RSFSR “Private entrepreneurial activity and commercial intermediation” and Art. 154 of the Criminal Code of the RSFSR “Speculation”. For entrepreneurship one could get five years with confiscation of property, for commercial mediation - three years with confiscation of property, for speculation on a large scale - up to seven years with confiscation of property. Speculation, if anyone doesn’t know, is “the buying and resale of goods for the purpose of profit,” i.e. normal trade.
But even in the Soviet years, citizens still had their personal property, albeit rather modest, and they could exchange it, sell it to each other or give it as a gift. That is, private law did not completely disappear, but only temporarily retreated under the onslaught of public law.
Lyrical digression: a look at private and public from 1917
“In the difference between public and private law, we are not dealing with a difference in interests or relationships, but with a difference in the methods of legal regulation, i.e., with a criterion that is not material, but formal, although in a completely different sense than has been previously assumed por. There is no area of relations for which only one or only another method would be the only possible; there is no such sphere public life, which we could not imagine regulated in either one or another type.
So, for example, above as the most striking example of public legal system The organization of military defense was centralized. But we can imagine (and history provides real examples of this) that some country protects itself with the help of hired squads, which in turn are made up of people who voluntarily entered there as free agents. In this case, the entire matter of military defense would turn out to be built on the principle not of public, but of private law: along with government contractors for the performance of some work, there would be contractors for protection from the enemy, hired condotieri [condottieri (from Italian condotta - rental agreement for military service) - in medieval Italy, leaders of free military detachments hired for service], with their private squads.
Likewise, public administration, now carried out with the help of strictly centralized system State bureaucracy, in ancient Rome in the early era of the principate, was carried out through the private agents of the emperor, often from his own freedmen.
On the other hand, one can easily imagine the entire area of economic relations, an area that is currently the area of private law, predominantly centralized, that is, restructured according to the principles of public law: the management of all production and distribution is in the hands of the central government, the activities each individual is determined according to the principles of labor service, etc.
We can imagine even the area of family relations organized according to the principles of public law. Let us imagine that some state, having set itself the goal of quantitative or qualitative improvement in population growth, came up with the idea of organizing this area of relations according to the principle of state service: all men who are in known age and having normal health, must marry and, moreover, with women indicated to them by the appropriate authority. Let this order of things seem to us complete absurdity and an unacceptable encroachment on the most intimate aspects human personality, - but it is still thinkable. In addition, history provides examples that there have been attempts in this direction. For this purpose, we do not need to turn to the exotic state of the Peruvian Incas, in which every year young people who had reached maturity gathered in the square on a certain day, and here government officials connected couples that they considered suitable. Suffice it to recall the famous marriage law of Emperor Augustus - lex Julia et Papia Poppaea - which established just such a general obligation for all men from 25 to 50 years old and for all women from 20 to 45 years old to be married and have children. True, neither prison nor any other criminal punishment was established for persons who did not fulfill this duty; they were only threatened with certain property disadvantages (the inability to receive from wills), but nevertheless, with this prescription, Roman law entered (albeit partially and temporarily) on the path of organizing family relations according to the compulsory principles of public law.”
Joseph Pokrovsky “Main problems of civil law”, June 1917
History and modernity
Public law inevitably hurts the feelings of public rulers, since many of them like to mix public interests with their own. Whether to elect the head of state or not, who to punish and for what crimes, what taxes to levy and what to spend them on - the emperor, king, czar or sultan prefer to decide all these issues independently.
Accordingly, until recently it was dangerous to point out shortcomings in public law. One could even pay with one's head for such impudence.
Therefore, after the fall of the republican system in Ancient Rome and over the following centuries, lawyers were afraid to engage in public law and preferred to study private law. Typically, rulers do not interfere so actively and allow people to decide for themselves who to make what deals with, who to hire, who to marry, and who to leave an inheritance to. And if lawyers proposed rules that made these relations more fair and reasonable, then kings or emperors could well agree and issue them in the form of law.
As a result, for most of human history, jurisprudence was concerned primarily with issues of private law. And the basic topics of public law - government, elections, taxes, crimes and punishments, judicial process - began to move towards goodness, reasonableness and justice quite recently, when the rulers of European states began to change regularly. And only in the last hundred to two hundred years, procedures for elections and referendums appeared around the world, and legal proceedings, criminal and tax laws were put in order. All this began to be subject not to the will of people in power, but to more or less reasonable and fair rules prescribed by law.
However, in today's Russia the imprint of this old imbalance is clearly felt. Almost all serious legal science deals with private law, the best lawyers work there, and in general the level of its development, if not reaches the global level, is comparable to it.
At the same time, completely non-legal mechanisms operate in the sphere of public law, when the resolution of many issues depends on clearly unreasonable and unfair laws or on the will of specific people.
One of the most bright examples- This is the difference between arbitration and criminal proceedings. If Russian arbitration courts that hear disputes between entrepreneurs are considered more or less honest and conscientious, then courts of general jurisdiction that hear criminal cases, on the contrary, often surprise with their biased attitude towards the accused, dependence on higher authorities and very controversial verdicts.
In Russian private law, there are individual questions regarding norms and institutions, but in general they are fair and specific. When you get acquainted with them, for example, with the Civil Code or the Law “On the Protection of Consumer Rights,” you see that they are written so that transactions are carried out in the most fair and reasonable manner.
And in public law, you can much more often come across unfair and vague norms, after getting acquainted with which you catch yourself thinking: “What fraudster wrote all this?” In particular, the laws “On Basic Guarantees of Electoral Rights...” or “On Political Parties” are written in such a way that the current authorities can prevent any person and any party from participating in the elections. And many articles of the Criminal Code and the Criminal Procedure Code are formulated in such a way that Russian court can imprison almost any resident of our country.
Because of this, quite a few problems arise in Russian law. strange paradoxes. If an entrepreneur is suing another entrepreneur on some business issue, it is quite possible that the court will look into the matter and make a balanced and objective decision, because this is a private law regulation. In this area, evidence, legal arguments, knowledge of legal science are very important - in a word, the role of law here is very high.
But if, for example, investigators fabricated a criminal case against the same entrepreneur or some political activist, then, most likely, the case will be decided by various kinds of extra-legal factors. These factors may include the relationship of defense attorneys or prosecutors with the judge, instructions from higher authorities, the current political climate, and much more. Here, alas, the role of legal arguments is much less, because this is public legal regulation.
Lyrical digression: why is this necessary?
Understanding the difference between public law and private law regulation helps answer many everyday questions legal issues that arise among citizens. I think you will now be able to answer such questions yourself. For example, this way:
“Why are the cops pressuring him? “I said that I have no complaints against him and forgave him?”
“Because there is public legal regulation here. You never know who you have forgiven - if a crime has taken place and the criminal remains unpunished, this is dangerous for the whole society, and not just for you.”
“The neighbors upstairs flooded the apartment. I contacted the police and the prosecutor's office - everyone said that there was a violation, but they didn't want to do anything! Why?"
“Because this is private regulation. The state believes that only your private interests are violated, and not the interests of the entire society. The neighbors didn't do it intentionally. If you want to get money, sue them."
“Here one freak hit my father. Serious harm to health. What is it like here? Should the driver be imprisoned or does he owe us some kind of compensation?”
“There is both public law regulation - in the Criminal Code, and private law regulation - in the Civil Code. If they prove that the driver is at fault and violated traffic rules (and not your father crossed the street in the wrong place), then he will face under Part 1 of Art. 264 of the Criminal Code of the Russian Federation “Violation... of traffic rules... resulting in negligence in causing serious harm to human health.” And he must compensate for property and moral damage separately, within the framework civil action. So collect medical bills and other documents.”
Resume
So, key problem legal science - the division of law into private and public. Public law must protect the interests of the entire society. It establishes how the state is structured, how authorities are formed and what their rights and responsibilities are, as well as what violations of the law are so dangerous that they need to be identified and investigated at public expense. The main branches of public law: constitutional, administrative, criminal, criminal procedural, civil procedural, etc. In public law, legal relations are mainly “vertical”, because their parties are in an unequal position, and most legal norms are imperative.
And private law protects the interests of private individuals. Here people and organizations themselves enter into legal relations with each other and themselves, basically, determine mutual rights and obligations. If their rights are violated, people and organizations themselves turn to court for protection. And if the court recognizes their rightness, then the damage, as a rule, is recovered in favor of the victim, and not in favor of the state. Main branches of private law: civil, family, labor, international private and business law. In private law, legal relations are mainly “horizontal”, because their parties are in an equal position, and most legal norms are dispositive.
The most obvious criterion for dividing rights into private and public is the method of judicial protection. If a person or organization has violated a law in the field of public law, then it does not matter who was directly harmed. The state representative must go to court and prove that there has been a violation of the law. And if a law in the sphere of private law is violated, then the victim himself must go to trial.
The state participates in private legal relations as an employer, customer of works and services, seller and buyer, tenant and lessor, because it is more convenient way get what he needs, rather than demand something from citizens in kind. At the same time, the boundary between private and public law is very fluid and changes frequently. Many areas of life were regulated first by public law methods, and then by private law methods, and vice versa. And even at the same moment, almost any branch of law contains separate elements of both private and public law.
In today's Russia, private law sectors and institutions are generally better developed than public law ones.
The next article from the series "Jurisprudence for Dummies" - "
a set of branches of law that regulate relations that ensure general, aggregate (public) interest, in contrast to branches of law aimed at protecting private interests (private law). P.p. serves the interests of the state, ensures national interests. By industry pp. include: public international law, constitutional law, administrative law, financial law, criminal and criminal procedural law, etc.
Great definition
Incomplete definition ↓
PUBLIC LAW
lat. jus publicum) - that part of the system of current law, the norms of which are aimed at protecting common good, are associated with the powers and organizational and power activities of the state, with the implementation of public goals and objectives, in contrast to private law (Latin jus privatum), which protects the interests of the individual, ensures the free self-realization of the citizen, the right private property and private entrepreneurship and is based on relations of equal parties. P.p. regulates the relations of the state and its bodies with citizens, public associations, economic structures, relations between government bodies. At the same time, the state body acts as a bearer of imperious (public) powers that ensure the interests of the whole society, its individual social strata, groups. In the field of P.p. An authority can imperatively prescribe certain behavior options for citizens and other subjects of law, demand from them strict compliance with the requirements of the law, and apply legal liability measures to violators. For P.p. characterized by regulation using imperative (categorical) norms that cannot be changed by participants in legal relations. Public legal relations are characterized by inequality of rights of the parties. One of these parties is usually the state or its body (official) with the function of command.
The existence of public and private law as an element civil society- a necessary prerequisite for limiting and establishing the limits of state intrusion into the sphere of personal property and other interests: establishing reliable ways to protect the rights and legitimate interests of citizens, their associations, private economic structures: preventing the substitution of civil law methods for protecting subjective individual rights with administrative law ones.
P.p. includes such branches of law as constitutional (state), administrative, financial, criminal, penal, international public, procedural branches.
Division of rights into P.p. and the particular was first recognized in ancient Rome. The well-known formula of the Roman lawyer Ulpian is that P.p. refers to the position of the Roman state, and private refers to the benefit of individuals. Not all existing systems of law are built on such a division. Thus, the Anglo-Saxon legal system, unlike the continental legal system, does not know it. It is also absent from traditional Muslim law.
Soviet official legal doctrine rejected the idea of dividing law into public and private as inconsistent with the nature of the new system, which proclaimed the abolition of private property and the priority of public (primarily state) property. This resulted in widespread government intervention in economic life, restriction of individual rights in property relations, prohibition of private initiative, which led to stagnation of economic activity and ineffective economic development. Expressed in the early 20s. when developing the Civil Code, the position of V.I. Lenin’s statement that “we do not recognize anything “private”; for us everything in the field of economics is public law, not private”, served for a long time as a methodological basis for legal theory and practice.
Nowadays, the introduction of market economy institutions, the recognition of private property rights and private entrepreneurship encourage the revival of the idea of dividing law into public and private, and actively use it in legislative and law enforcement activities.
In principle, it is impossible to clearly and absolutely separate public and private law. In industries P.p. there are often elements of private law, and vice versa. So, in family law, traditionally considered a branch of private law, there are such public law institutions as the procedure for divorce, deprivation parental rights. IN labor law public law (termination employment contract at the initiative of the administration, imposition disciplinary sanctions) and private law (conclusion of an employment contract, its termination at the initiative of the employee) elements.
In modern states, there is an increasing tendency towards mutual penetration of P.P. norms. and private law, which is primarily due to the increasing influence of the state on economic relations. The growth of the state's social activities to protect individual rights, social security, and price regulation encourages the use of administrative and legal means in those areas of relations that traditionally belonged to private law. The institution of a mandatory contract concluded by order of a state body has been created. Administrative regulation of business and trading activities. On the other hand, the increasing role of the state in organizing the work of industrial, trade, construction and other enterprises, primarily those that are owned by the state, expands the use of private legal institutions and means in the economic activities of such enterprises.
Great definition
Incomplete definition ↓
Public law- that part of the system of current law, the norms of which are aimed at protecting the common good, state interest, are associated with the powers and organizational activities of the state, with the implementation of public goals and objectives, in contrast to private law.
Public law regulates the relations of the state and its bodies with citizens, public associations, business entities, and relations between government bodies. At the same time, the state body acts as a bearer of state-imperious (public) powers that ensure the interests of the entire society, its individual social strata, and groups. In the sphere of public law, an authority can imperatively prescribe certain behavior options for citizens and other subjects of law, require them to strictly comply with the requirements of the law, and apply legal liability measures to violators. The obligated person is called upon to obey and comply with legal regulations.
Public law is characterized by regulation with the help of imperative (categorical) norms that cannot be changed by the participants in legal relations, relations of power and subordination that exclude autonomy of will and private initiative of the subordinate subject, and inequality of rights of the parties. One of these parties is usually the state or its body (official) with the function of command.
Public Law:
1) focuses on satisfying public interests;
2) characterized by a unilateral expression of the will (of the state);
3) has a wide scope of discussion with a strictly mandatory imperative form of regulation;
4) provides for hierarchical (subordinate) relations between subjects of law;
5) contains general and impersonal norms that have a normative and indicative influence;
6) is determined by the advantage of voluntary-mandatory norms designed for direct application sanctions related to restrictions on the use of resources;
Public law includes such branches of law as constitutional (state), administrative, financial, criminal, international public, procedural branches, criminal executive.
Constitutional (state) law- a set of legal norms regulating the legal status of a person, the foundations of the organization of the social and state system, the system of state and local government bodies, mechanisms for implementation state power. Through the prism of constitutional law, one can perceive the legal image of the state as an integral phenomenon. The method of legal regulation is predominantly imperative and is aimed at ensuring stability in society, predictability of socio-political processes, and creating appropriate conditions for the implementation of human rights and freedoms. Constitutional law primarily performs a regulatory static function. The regulatory dynamic function of constitutional law is expressed in the formation and establishment of competence higher authorities power, implementation political power the president and representative bodies of the state, the delimitation of competence between state authorities and local self-government. The main source of constitutional law in Ukraine: - The Constitution of Ukraine of 1996.
Administrative law- a system of legal norms regulating public relations, which are formed in the course of ensuring by executive authorities and local self-government bodies the implementation, protection and protection of the rights, freedoms and legitimate interests of individuals and legal entities, as well as in the process of their management of socio-economic and administrative political development. Administrative law is subject to regulation by state power, which is implemented both in the form of public administration (administrative activity itself) and in various other forms of state activity, i.e. the regulation of administrative law extends to public administration, which is carried out not only inside, but also outside the activities of executive authorities, namely: within the apparatus of other public authorities (parliament, courts, police, etc.); within the apparatus of state enterprises, institutions, etc. In administrative law, the imperative method of legal regulation with its inherent subordination of subjects of management relations predominates.
Financial law as a branch of public law, it is represented by a set of norms through which the regulation of relations arising in the process of formation, distribution and use of state monetary funds is carried out. Unlike administrative legal relations, financial legal relations are property (monetary) relations that arise in the process financial activities state regarding cash. A feature of financial law is the presence in its composition of sub-branches of law - budgetary, tax, banking.
Criminal law- a system of legal norms that protect the rights and freedoms of man and citizen, the constitutional system, and all types of property from criminal attacks, and establish the extent of criminal liability for their commission. Criminal law performs security and protective functions; only certain norms have a regulatory (expungement of a criminal record) or advisory (necessary defense) nature. The criterion that determines criminal legal regulation is social danger, its nature and degree. Accordingly, the subject of regulation of criminal law is socially dangerous acts committed against the individual, society, and the state. The only source (form) of criminal law is the Criminal Code. The system of public law includes procedural branches of law- criminal procedure and civil procedure (judicial law). Norms criminal procedure law are intended to regulate the activities of investigation, consideration and resolution of criminal cases. Civil procedural law has as its official purpose the establishment of the order and procedure for resolving civil cases by courts.
Public international law- not being an integral part national system law is a set of norms and principles contained in conventions, international treaties, acts and charters international organizations, which regulate relations between states and other participants in international communication.
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Criminal law – GOS
General part.. The concept of the task of the function, the principles of criminal law, etc.. The actions of the criminal law in time, space and among a circle of persons..
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Concept, tasks, functions, principles of criminal law
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The concept and characteristics of the state. Strong and weak state. Modern state
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Definition of law. Types of legal understanding
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Subjects of legal relations. Legal entities
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Legal facts and factual composition. Legal facts-states
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Legal system and legal system as categories of jurisprudence
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Branches of law. Hierarchy of branches of law in Ukraine
A branch of law is a relatively independent set of legal norms that regulates a qualitatively homogeneous sphere (genus) of social relations using the specific method of law
Private law. Branches of private law of Ukraine
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Material law. Branches of substantive law of Ukraine
Substantive law is a set of branches that contain rules of law that directly regulate social relations (constitutional, civil, administrative, criminal, etc.).
Procedural law. Branches of procedural law of Ukraine
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Grounds, procedure and legal consequences of recognizing a person as having limited legal capacity
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Grounds, procedure and consequences of recognition of individuals. missing persons
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Grounds for the procedure and consequences of declaring an individual dead
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Grounds, procedure and methods for the emergence of legal entities
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Grounds, procedure and methods for terminating legal entities
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Termination of power of attorney
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General provisions on property rights. Property and property rights. Types of property rights
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PUBLIC LAW (lat. jus publicum)
that part of the system of current law, the norms of which are aimed at protecting the common good, are associated with the powers and organizational and imperious activities of the state, with the implementation of public goals and objectives, in contrast to private law (Latin jus privatum), which protects the interests of the individual, ensures free self-realization of a citizen, the right of private property and private entrepreneurship and is based on relations of equal parties. P.p. regulates the relations of the state and its bodies with citizens, public associations, economic structures, relations between government bodies. At the same time, the state body acts as a bearer of imperious (public) powers that ensure the interests of the entire society, its individual social strata, and groups. In the field of P.p. An authority can imperatively prescribe certain behavior options for citizens and other subjects of law, demand from them strict compliance with the requirements of the law, and apply legal liability measures to violators. For P.p. characterized by regulation using imperative (categorical) norms that cannot be changed by participants in legal relations. Public legal relations are characterized by inequality of rights of the parties. One of these parties is usually the state or its body (official) with the function of command.
The existence of public and private law as an element of civil society is a necessary prerequisite for limiting and establishing the limits of state intrusion into the sphere of personal property and other interests: establishing reliable ways to protect the rights and legitimate interests of citizens, their associations, private economic structures: preventing the substitution of civil law methods of protection subjective rights of the individual administrative and legal.
P.p. includes such branches of law as constitutional (state), administrative, financial, criminal, criminal executive. international public, procedural branches.
Division of rights into P.p. and the particular was first recognized in ancient Rome. The formula of the Roman lawyer Ulpian is known, that P.p. refers to the position of the Roman state, and private refers to the benefit of individuals. Not all existing systems of law are built on such a division. Thus, the Anglo-Saxon legal system, unlike the continental legal system, does not know it. It is also absent from traditional Muslim law.
Soviet official legal doctrine rejected the idea of dividing law into public and private as inconsistent with the nature of the new system, which proclaimed the abolition of private property and the priority of public (primarily state) property. The consequence of this was widespread government intervention in economic life, restriction of individual rights in property relations, and a ban on private initiative, which led to stagnation of economic activity and ineffective economic development. Expressed in the early 20s. when developing the Civil Code, the position of V.I. Lenin’s statement that “we do not recognize anything “private”; for us everything in the field of economics is public law, not private”, served for a long time as a methodological basis for legal theory and practice.
Nowadays, the introduction of market economy institutions, the recognition of private property rights and private entrepreneurship encourage the revival of the idea of dividing law into public and private, and actively use it in legislative and law enforcement activities.
In principle, it is impossible to clearly and absolutely separate public and private law. In industries P.p. there are often elements of private law, and vice versa. Thus, in family law, traditionally considered a branch of private law, there are such public law institutions. as a procedure for divorce, deprivation of parental rights. Labor law also closely combines public law (termination of an employment contract on the initiative of the administration, imposition of disciplinary sanctions) and private law (conclusion of an employment contract, its termination on the initiative of the employee) elements.
In modern states, there is an increasing tendency towards mutual penetration of P.P. norms. and private law, which is primarily due to the increasing influence of the state on economic relations. The growth of the state's social activities to protect individual rights, social security, and price regulation encourages the use of administrative and legal means in those areas of relations that traditionally belonged to private law. The institution of a mandatory contract concluded by order of a state body has been created. Administrative regulation of business and trade activities is expanding. On the other hand, the increasing role of the state in the organization
the organization of the work of industrial, trade, construction and other enterprises, primarily those that are owned by the state, expands the use of private legal institutions and means in the economic activities of such enterprises.
Pigolkin A.S.
Encyclopedia of Lawyer. 2005 .
See what “PUBLIC LAW” is in other dictionaries:
A set of branches of law that regulate relations that ensure general, aggregate (public) interest, in contrast to branches designed to protect private interests (private law). To P.p. include: international (public) law,... ... Legal dictionary
Public law- a set of branches of law regulating relations related to ensuring general (public) or national interest. In public legal relations, the parties act as legally unequal. One of these parties is always... Elementary principles of the general theory of law
Public law- (Latin jus publicum; English public law) in an objective sense, a set of branches of law (branches of legislation), the norms of which determine the organization, functions and activities of the state, its attitude towards individuals (individuals and... Encyclopedia of Law
PUBLIC law, a complex of branches of law regulating legal relations in the sphere of state public authority (hence the name), relations between citizens and the state and its bodies. Public law includes constitutional law,... ... Modern encyclopedia
Public law- PUBLIC LAW, a complex of branches of law regulating legal relations in the sphere of state public authority (hence the name), relations between citizens and the state and its bodies. Public law includes constitutional law,... ... Illustrated Encyclopedic Dictionary
PUBLIC LAW- a set of branches of law that regulate relations that ensure general, aggregate (public) interest, in contrast to branches of law aimed at protecting private interests (private law). P.p. serves the interests of the state... ... Legal encyclopedia
Branches of law (constitutional law, administrative law) regulating activities government bodies, relations between citizens and state bodies. The division of law into public law and private law is borrowed from Roman law.... ... Political science. Dictionary.
Concerning the interests of society, and not individual ones. faces. Dictionary of foreign words included in the Russian language. Pavlenkov F., 1907. PUBLIC LAW a set of norms established in the interests of an entire society or large social groups, law... ... Dictionary of foreign words of the Russian language
See Public Law Dictionary of Business Terms. Akademik.ru. 2001... Dictionary of business terms
public law- A set of legal principles governing the use of powers public authorities. Public law remedies are those procedures that citizens can use to challenge the fairness or legality of government decisions... ... Technical Translator's Guide
Private law is a collective concept meaning branches of law regulating private interests, independence and initiative of individual owners and associations (corporations) in their property activities and in personal relationships, in contrast to ... ... Wikipedia
Books
- Public law and management: development prospects. Materials of the 1st All-Russian Student Conference. During the 1st All-Russian Student Conference 'Public Law and Management: Development Prospects', current problems in the theory of state and law,...
Public law is a branch of the Ukrainian legal system that regulates social relations, which have their own specifics.
3.1 Subject, essence, methodology of public law
The specifics are determined by the subject of public law - these are social relations associated with state management activities, with the organization and implementation of state power, law enforcement, proceedings in cases of offenses, the system of state bodies and local governments, the use of state property, ensuring the activities of the state (education, use, distribution of state funds, etc.). Moreover, the state acts as an arbiter in disputes when private agreements no longer apply.
The subject of regulation of public law is the area of “state affairs”: the sphere of structure and activities of the state as public authority, all public institutions, the state apparatus, administrative relations, civil service, criminal prosecution and responsibility, principles, norms and institutions of interstate relations and international organizations, etc. .d.
The main method of public law is the method of state-authoritative instructions from some participants in relations to others; the state itself establishes the types and measures state protection public relations. Along with this method, the following is sometimes used:
imperative method (the state can vest state powers);
dispositive method (the right of the parties to use their rights at their own discretion).
The principles of public law are determined mainly by the Constitution of Ukraine:
principle of legality;
justice;
humanism;
equality.
Signs of public law:
1) regulates relations between government bodies or between private individuals and the state;
2) ensures public interest - focuses on prohibitions, responsibilities of people (subjects) to the state;
3) ensures the unilateral expression of the will of subjects of law;
4) implies a wide scope of discretion;
5) contains general and impersonal norms that have a normative orienting effect;
6) characterized by the predominance of directive-binding norms, designed for hierarchical relations between subjects and the subordination of legal norms and acts;
7) widely uses the latest technical techniques.
The sources of public law are regulations (laws), sometimes – legal custom (precedent) of the executive government.
Branches of law in which public law is the starting point:
Constitutional,
Administrative,
Criminal,
Financial,
Including budget tax,
Administrative - procedural;
Criminal procedure,
International public
International humanitarian law, etc.
3.2 Public law system
The division of the legal system into private and public law goes beyond sectoral boundaries. These are larger structural formations than the industry. What public and private law have in common is that each of them unites a set of branches of law that are homogeneous in their characteristics: private - civil, family, labor law; public - all other branches of law. Of course, this does not exclude, but on the contrary, presupposes the penetration of private principles into the scope of legal relations covered by public law. For example, a category of administrative contracts has appeared. At the same time, public principles penetrate into the sectors of the private law block, including the establishment of limits and boundaries for the manifestation of private initiative and responsibility in case of their violation.
Let's take a closer look at each branch of public law.
Constitutional law– the leading branch of the national legal system, representing a set of legal norms that define the foundations of the constitutional system, the legal status of man and citizen and consolidate the state structure, the system of state power and local self-government. Constitutional law is characterized by a special subject and method of regulation. The subject of constitutional law is social relations that arise in the process of realizing the sovereignty of the Ukrainian people in all its forms, ensuring the functioning of the institutions of representative and direct democracy. The special role and purpose of constitutional law is to ensure the sovereignty of the people in all spheres of society. This area of legal regulation is the exclusive prerogative of constitutional law, and it is not characteristic of any other branch of law. As a branch of public law, constitutional law uses the method of legal influence inherent in all branches of public law. At the same time, constitutional law has a special way of constitutional influence – establishment, significantly different from other methods of legal regulation (permission, prescription and prohibition). The legal design of a constitutional institution is such that it does not presuppose precisely defined (personalized) rights and obligations of specific subjects, participants in legal relations - constitutional provisions have a general, universal character, are addressed to all or many types of subjects, and, as a rule, do not give rise to specific legal relations, realized in the so-called general constitutional relations.
Administrative law– a branch of public law, the subject of regulation of which is the relations that develop in the process of organization and activity of executive authorities. The norms of administrative law regulate public legal relations of power - subordination, in which one of the parties is necessarily the executive body of power (official), endowed with state power.
Financial law as a branch of public law, it is represented by a set of norms through which the regulation of relations arising in the process of formation, distribution and use of state monetary funds is carried out. Unlike administrative legal relations, financial legal relations are property (monetary) relations that arise in the process of financial activities of the state regarding funds. A feature of financial law is the presence in its composition of sub-branches of law - budgetary, tax, banking.
Criminal law – branch of public law that regulates relations related to crime and the punishability of acts. Like any branch of law, criminal law consists of a set of legal norms. The norms of criminal law are norms-prohibitions. They prohibit socially dangerous actions and inactions of people under the threat of using special means of state coercion - criminal punishment.
Environmental law– a relatively “young” branch of law, the norms of which regulate relations between people and organizations for the purpose of rational use of natural resources and environmental protection.
The public law system includes procedural branches of law– criminal procedure and civil procedure (judicial law).
Norms criminal procedure law are intended to regulate the activities of investigation, consideration and resolution of criminal cases.
Civil procedural law has as its official purpose the establishment of the order and procedure for resolving civil cases by courts.
Public international law– a set of norms and principles contained in conventions, international treaties, acts and charters of international organizations that regulate relations between states and other participants in international communication, which is not an integral part of the national system of law. [Application]