Милинчук Д.С_Summery (1138954), страница 2
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As well as indetermining the place of conflict of law in the system of law. The researchmaterials can be used in the practice of law enforcement agencies, as well as takeninto account in legislative activity. Of particular interest is the present study in acomprehensive study of the legal system and its individual structural elements.In addition, the materials of this study can be used in the legislative processin the preparation of the modern draft of the Federal law «on normative legal actsin the Russian Federation», as well as in the teaching of the course of legalconflictology and the special course «Conflict of laws».The thesis for protection:1.
There is no the single approach to the Genesis of conflicts of law in thenational doctrine of conflict of law. In our opinion, the causes of conflicts of lawcan be divided into three groups.The first group includes objective reasons that are virtually independent of,or to a small extent depend on, the subjects of rule-making and the subjects thatprovide different types of rule-making process.The second group of causes of conflicts are the subjective causes that arisedue to the fault of individual subjects of legislation (chambers of Parliament,government, Minister), or the developer of the draft normative legal act, or theentity providing a particular type of rule-making process. Among this group thereare both indirect reasons, for example, when the draft regulatory legal act has notpassed the RIA or has not been agreed with the authorities concerned, and direct.The third group consists of mixed causes of legal conflicts, which are causedby both objective and subjective factors.
The following examples can be given: theemergency situational nature of the adoption of legislative acts as a response tocertain facts that have occurred; the urgent change in the order of legal regulationassociated with the application of sanctions against Russia; the introduction ofseveral changes in the already changed norms of laws, etc.2.
Conflict of laws is a multilevel concept. Structurally, it consists of threelevels that allow not only to understand the legal nature of this phenomenon of theRussian legal system, but also its importance, value and determine the prospectsfor its development in the legal system and in legal conflictology.The first level is normative and instrumental, which helps authorities,officials and other participants of legal processes to choose the right methods ofprevention and resolution of legal conflicts.The second level is scientific.
Conflict of laws is an area (scientificdirection) of the General theory of law and the state, which, in turn, should bestructured into two sections. The first of them is the basic theoretical system ofknowledge, which studies the conflict of law itself and aims to determine itsnature, classification of legal conflicts, as well as to identify the causes andconditions of their occurrence. The second section of conflict of laws, as ascientific direction, is empirical.
It is primarily concerned with the development,verification and selection of methods and techniques for resolving and preventingconflicts of law applied in practice, as well as with the development of amechanism for identifying conflicts and accumulating jurisprudence on the issue ofresolving conflicts of law. This should also include the institution of monitoring ofnormative legal acts and normative agreements for the presence of conflicts inthem.The third level of training, it is associated with the extrapolation of scientificand empirical knowledge developed by science and proven practice, legislators,law enforcement, students.
The structure of the studying programme «Conflict oflaws», in our opinion, should consist of two parts. The first (General part) shouldrepresent the basic theoretical system of knowledge, containing the doctrine of thenature of conflict of law, the classification of legal conflicts, as well as identifyingthe causes and conditions of their occurrence. The second part of the programme isempirical (special), connected with didactic methods of transfer of knowledge,skills in resolving and preventing conflicts in law, as well as teaching moderntechniques of identifying conflicts in law.3. Interbranch Institute of law is a group of legal norms, United by acommon object of regulation of public relations of the several branches of the lawwith common characteristics and performs certain legal functions, aimed atregulation of public relations and the protection of the legitimate rights andinterests of subjects of law of various methods of legal regulation of permissive ormandatory characteristic fields of law governed social relations.
In this context,private international law is an interdisciplinary law Institute.4. The problem of correlation between the concepts of «conflict of law» and«competition of law» is solved in favor of differentiation of concepts. Competitionof legal norms is proposed to be considered as a type of legal conflict. Thus, aconflict is a clash of laws and consists in the fact that the collision exists in thenormative legal acts, but may not be detected, so the conflict of law is a passivecollision.
Competition of rules of law is a conflict that has already been directlydetected and needs to be overcome, that is competition is an active conflict, a clashthat must be overcome in the process of law enforcement.5. Conflict of law is correlated and inextricably linked with legalconflictology as «General» and «special». Legal conflict stands out as an acuteform of legal conflict. Conflict of law is special in relation to legal conflictologyand is part of it. However, since the causes of legal conflicts are much broader anddo not relate only to conflicts of law, these concepts are not identical and are notabsorbed by each other.
Conflict of law should be considered as part of legalconflictology, as this area provides a very large layer of normative and legal nonnormative information for the prevention and resolution of real legal conflicts,which contributes to the preservation of legal order and the development of trust inlaw as an effective regulator of public relations.6. All ways of dealing with conflicts should be divided into ways to preventpossible conflicts and ways to resolve existing conflicts. In turn, the ways ofresolving conflicts can be classified into ways to eliminate (elimination of conflictsin the course of law-making) and ways to overcome (elimination of conflicts in thecourse of law enforcement).A number of effective legal methods and methods of legal regulation areused to resolve and prevent conflict situations.
Sometimes, to achieve this goal, itis not enough to use one method of legal regulation, in this regard, it is necessaryto use several of these methods simultaneously, an integrated method. The essenceof the conflict of law is dictated by the impossibility of identifying the conflict oflaw method of legal regulation, in principle, since, as an interbranch institutionconsisting of General rules that determine the rules for the selection of thenecessary regulatory legal norms in any branch of law, it is impossible to foreseethe emergence of those legal instruments that will be necessary to resolve orprevent conflicts of law. Since the conflict in law is situational, it is impossible todevelop binding methods and ways to resolve this conflict. And, therefore, conflictof laws uses a set of already known means, techniques and methods used toeliminate conflicts of law, taken from other areas of law.
In accordance with theobjectives of conflict of laws, these borrowed from different branches of law areonly an effective tool for resolving and preventing conflicts of law, but they cannot constitute a single method of legal regulation within the framework of conflictof law.7. The modern legal science has not yet developed a single approach to theconcept of the legal system and the criteria for the allocation of its structuralelements. It is necessary to unite legal norms, first of all, on the basis of suchcriterion as «homogeneity of regulated social relations».
Homogeneity of socialrelations is the main distinguishing feature of branches, sub-sectors and institutionsof law. Moreover, the smaller complex of law rules, the more narrow one of publicrelations regulated by them. The boundaries of regulation of social relations arestrictly defined by the framework of the Institute of law or branch of law and donot go beyond it.
One criterion is no longer enough to single out branches, subsectors and institutions of law in modern conditions. In this regard, it is proposedto Supplement the criteria of differentiation of legal communities with such criteriaas: «homogeneity of regulated social relations»; «special determonations» and«autonomy of functioning».8. The Institute of conflict of laws international private law is part of thestructure of national conflict of laws.
It is proved that, despite the different natureof these two systems, their heterogeneous subject and subject composition, to talkabout the conflict regulation of interethnic social relations, as a separate legalentity, not included in the system of national law, is incorrect, because it still doesnot have its own ways of legal regulation and conflict of laws rules are used at anylevel of legislation, and at the national level, including, although much less than inprivate international law.The transformation of some generally accepted theoretical concepts affectsthe individual, applicable conflict of laws, means of legal regulation. One suchinfluence is a new perspective on the problem of conflicts between national andinternational law.
In case of conflict between the legal norms of foreign andnational legislation, the choice of law should be made in favor of nationallegislation. This conclusion is made on the basis of logical links between law andits purpose, as well as on the basis of the practice of the constitutional Court of theRussian Federation.9. The methods and techniques of prevention and resolution of conflicts inlaw developed by the conflict of laws should be considered within the frameworkof the theory of values of law. The tasks performed and the properties possessed bythe category of «stability» can be attributed to its social values right (S.S.Alekseev, O.F.
Skakun, N. Nenovsky). I. Karaseva identifies a number ofclassifications of values of the law according to various criteria, in which theconcept of «stability» occurs. We have among the signs of stability of the lawwere identified: a) obligation, b) conflict-free, C) predictability. Non-collisionalityis the main sign of stability, without which other signs lose their significance fordetermining the category of stability, although they are quite important.10. In the Russian legislation, taking into account the latest achievements oflegal science, it is necessary to consolidate the status of conflict of laws as amechanism for resolving possible conflicts between the rules of law in the currentRussian legislation.
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