Милинчук Д.С_Summery (1138954)
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National Research University«Higher school of Economics»Milinchuk Daria SergeevnaCONFLICT OF LAWS AS INTERBRANCH INSTITUTEOF THE RUSSIAN LAWPhD Dissertation Summaryfor the purpose of obtaininPhilosophy Doctor in Law HSEAcademic supervisor:Arzamasov Yuriy Gennadyevich,Doctor of Science, ProfessorMoscow – 2018The thesis was completed at the Department of theory and history of lawof the faculty of law of the National Research University«Higher school of Economics»The text of the thesis is deposited and available on the website of the HigherSchool of Economics: https://www.hse.ru/sci/diss/12.00.01 - Theory and history of a law and a state; history of doctrinesof a law and a stateAcademic SecretaryDissertation Council in LawDoctor of Science, assistant professorIrina Alexandrovna EmelkinaGENERAL DESCRIPTION OF PhD THESISThe relevance of the research is mainly due to the fact that the term«conflict of laws» is often used in modern Russian legislation and in Russiandoctrine.However, an unambiguous answer to this question, what should beunderstood by it, is difficult to give, since conflict of laws is called both a branchand an institution of law, and an instrument for resolving legal conflicts and aninstrument for preventing law-making mistakes and legal defects.Such a difference of opinion among modern scientists is mainly due to thefact that in the national legal science there is no monistic approach to the system oflaw, to its structure, to the criteria for the allocation of branches of law.For example, A.A.
Golovina suggested such criteria as : «the highimportance of regulated social relations», «the presence of a codified normativelegal act In addition to the traditional subject and method of legal regulation» inher PhD thesis «Сriteria of independent branches in the system of Russian law.From this point of view, conflict of laws cannot be called a branch of law.But may it be a branch of legislation? It is also controversial, because it isimpossible to name any regulatory legal act that would contain only conflict oflaws. Such norms are embedded in a variety of legal structures of normative legalacts, which belong to different branches, both legislation and law.In this regard, in the Russian legal doctrine there are various hypothesesabout the legal nature of conflict of laws, from the one hand, it would be morelogical to consider conflict of laws as a section or institution of emerging scienceor, more correctly, a scientific direction called «legal conflictology».
On the otherhand, if we continue to develop the theory of the system of law (G. Ellinek, N.Luman, S.S. Alekseev, D.E. Petrov, etc.), bringing it to a new step of developmentof law, it will be relevant to explore this concept from the perspective of the theoryof inter-sectoral institutions.The degree of scientific development of the topic. The problem of theexistence of intersectoral institutions in law is not an absolute novelty, as early asin 1947, the famous Professor V.K. Reicher put forward a provision on thepresence of basic and complex branches of law .In the PhD thesis we define the place of conflict of laws in the system ofRussian law, as well as in the system of legal conflictology.
Meanwhile, the theoryof intersectoral institutions has been studied before. One of the first was to developit in the second half of the twentieth century. Professor S.V. Polenina, who notedthat interbranch institutions are the most common type of complex legalphenomena, and that they arise at the junction of various branches of law, thesubject of regulation of which has a certain commonality. Nevertheless, despite thefact that some attempts to study interbranch institutions as legal entities in thestructure of law have already been made, this area remains little studied.The scientific novelty of the PhD thesis lies in the development of theauthor's concept of conflict of laws, which includes not only scientific andtheoretical concepts and categories of conflict of law and applied scientific,methodological and empirically based technologies, but also scientific forecastsrelated to the development of modern social and legal conditions of conflict of law.For the first time in the theory of law conflict of law was investigated not just as aninterbranch functional legal institution, but its place in the structure of the legalsystem and legal conflictology, which allowed to establish its legal nature and todetermine the trends of its development in Russia.
In addition, the study revealedthe axiological significance of conflict of laws as an interdisciplinary legalinstitution in the Russian legal system.Criteria of separation the right into branches, sub-branches and institutes ofthe right are allocated, and the subject of legal regulation is added by such criterionas conceptual and categorical device. With obsteretics positions showed signs ofstability rights, foremost among which is escallations law. The ways of preventionand resolution of conflicts in order to combine them into a conflict-of-laws methodof legal regulation are identified and improved.In addition, the thesis identified trends in the development of conflict of lawsand made a legal forecast about the possibilities of development of conflict of lawin the system of Russian law.An important research achievement was the definition of the place ofconflict of law in the system of law, its role and importance in it.The interbranch nature of the study allowed not to be limited to the study ofconflict of laws only from the standpoint of the General theory of law.
In thisconnection, the conflict of laws was investigated by us from the point of view ofindustry, with special attention paid to private international law. This is mainly dueto the fact that conflict of laws rules are often found, namely, in privateinternational law, so it was investigated by us as an integral part of the Russiannational conflict of laws.The theoretical basis of the PhD theses consists of scientific researches ofboth national and foreign scientists-lawyers (D.M. Azmi, S.S.
Alekseev, Yu.G.Arzamasova, M.I. Baitin, S.V. Boshno, N.A. Vlasenko, M.V. Voronin, A.A.Golovin, G. Ellinek, M.V. Zakharova, R. Iering, O.S. Ioffe, V.P. Kazimierczuk,M.A. Kaufman, T.V. Kashanina, D.A. Kerimov, E.A. Kirimova, V.V. Lazarev,A.V.
Malko, M.P. Marchenko, N.I. Matuzov, D.E. Petrov, N.A. Pianova, T.N.Radko, V.K. Reicher, L.I. Petrazhitsky, V.D. Sorokin, A.F. Cherdantsev, G.F.Shershenevich, etc.)The author also relied on the researces of experts of private international law(P.L. Anufriyeva, K.A. Bekyashev, I.V. Getman-Pavlova, G.K. Dmitrieva, T.N.Neshataeva, etc.), conflict of laws (I.V. Alenina, C.V. Akhmetzhanova, N.A.Vlasenko, N.N. Voplenko, V.V.
Denisenko, A.M. Zanin, S.A. Kondrat'eva, Z.A.Neznamova, O.A. Polyakov, I.V. Sinitsa, I.A. Starodubtseva, Yu.A. Tikhomirov,L.V. Tolstoy, etc), interbranch legal institutions (Yu.K. Osipov, S.V. Polenina,O.E. Repetivel, I.V. Reshetnikova, S.A. Khalatova, etc).Special attention was paid to the study of General and legal conflict, inparticular the scientific researches of such scientists as G. Zimmel, L. Coser, I.G.Kozyrev, V.N. Kudryavtsev, R.A. Romashev, T.V. Khudanina, etc.The object of the PhD thesis is social relations associated with differenttypes of conflict of laws.The subject of the PhD thesis is conflict of laws as an interbranch elementof the system of law and as part of the legal conflictology.The methodological base of the PhD thesis is represented by a set ofGeneral scientific, special private law research methods.
In particular, in the firstChapter of the thesis in identifying the essence of conflict of laws used as Generalscientific methods (analysis and synthesis, extrapolation, dialectical method,hypotheses) and private legal methods (legal analysis, comparative legal method).In the second Chapter, establishing the place of conflict of law in legalconflictology, we also used the dialectical method of research, as well as themethod of legal modeling and forecasting, together with the logical method, aswell as the instrumental method in the study of ways to prevent and resolveconflicts of law, as well as the system-structural method.
In the third Chapter, todetermine the role of conflict of laws in the system of law, used historical andlogical methods, functional method and systematic approach, as well as suchprivate law research methods as the method of legal modeling and legalforecasting, the method of legal analysis. The system-structural method of researchwas also applied.The purpose of the PhD thesis is to reveal the legal nature of conflict oflaws and to determine its place in the system of law and legal conflictology.The issues of the PhD thesis are:- identification of the causes of conflicts of law;- identification and consideration of scientific theories, which reflect theconflict of law, consideration of approaches to the concept of conflict of law andthe identification of signs of conflict of law;- development of the author's definition of the conflict of laws;- implementation of the classification of conflicts of law;- studying of the nature and structure of legal conflictology, the definition ofthe essence of the conflict in law and the identification of the relationship of legalconflict with the legal conflict;- determination of actual methods and methods of legal regulation in thefield of conflict social relations;- studying of the concept and the basic elements of the system of law,identifying the properties of the system of law, the ratio of the concepts of «systemof law» and «structure of law», the development of its own concept of allocation ofelements of the system of law, making proposals to improve the allocation ofelements of the system of law;- conducting a comprehensive theoretical study of the law Institute,determining its place and role in the system of Russian law, the disclosure of thesocial nature and legal nature of legal institutions, studyштп of their functions.Particular attention is paid to the nature of interbranch legal institutions, theirnature and functions; identification of criteria for the division of intersectoralinstitutions into types;- definition of the role of conflict of laws in the system of law and its studyas an institution of law;- identifying the features of the Institute of conflict of laws in privateinternational law;- definition of conflict of laws rules and their types;- studying of conflict of laws rules in the mechanism of legal regulation;- identification of problems of legal regulation of conflict of laws;- making proposals to improve the mechanism of legal regulation of conflictof laws;- development the primary structure of the training course «Conflict oflaws».The normative and empirical base consists of acts of international law, theConstitution of the Russian Federation, Federal legislation and other Russian laws,judicial practice of the Russian Federation, as well as personal experience of theauthor as a practicing lawyer, researcher and teacher.The practical and empirical significance of the results of the PhD thesisis to identify ways to prevent and resolve conflicts in law, identify theirweaknesses and offer recommendations for their improvement.
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