Милинчук Д.С_Summery (1138954), страница 4
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In turn, the ways to resolve conflicts can be dividedinto ways to eliminate (elimination of conflicts in the course of law-making) andways to overcome (elimination of conflicts in the course of law enforcement).All methods of prevention and resolution are analyzed, delineating conceptsconcerning such closely related methods as harmonization, unification,implementation of the law are given.The ways of improving the legislation, including such as legal monitoring,regulatory impact assessment, assessment of the actual impact, model legislation.The practice of model legislation in the CIS countries, USA, Scandinavia isanalyzed.Special attention is paid to the interpretation of law as a way to prevent andovercome conflicts in law.Work to eliminate the causes of conflicts of law is also important.
And hereit is necessary to highlight such a way as the elimination of gaps in the law.Examining basic methods of prevention and resolution of legal disputes, wecame to the conclusion about the impossibility of their Union as a conflict methodof legal regulation.In the third Chapter «Сonflict of Laws as an element of the system of law» astudy of the system of law and its structure. Conflict of laws investigated in theposition of the theory of law.In paragraph 3.1, «the Concept and structure of law» analyzed therelationship that allow you to call a set of elements of the system.
It is noted thatthe structure of the legal system can be influenced by a specific type of legalunderstanding.The well-known criteria of division of the right into structural elements,including the subject and method of legal regulation, are investigatedIn paragraph 3.2 «the place of conflict of law in the system of Russian law»is determined by the place of conflict of law in the system of law, it relates to theelements of the system of law and legal analysis, the conclusion is made, signs ofwhich of the elements of the system of law conflict of law corresponds to a greaterextent.Special attention is paid to the discussion on the rejection of the branchdivision of the system of Russian law.It is noted that at present the dispute over the division of law into brancheshas practically lost its relevance, since the overwhelming majority of scientists andresearchers in the field of law recognize the principle that each branch has its ownsubject and method.The analysis made it possible to conclude that the conflict of laws does nothave its own method of legal regulation.The lack of a method of legal regulation is one of the argu-ments ofconsideration of conflict of law within the framework of the legal institution.The analysis of such conceptual structures as «complex legal Institute»,«inter-branch legal Institute» and «mixed legal Institute»" for their coincidence anddifference.It is concluded that the necessity and possibility of using the methods oflegal regulation and principles from other industries allows to define this legalinstitution as mixed.
At the same time, it is noted that mixed legal institutions donot exist as independent. Confusion is a characteristic of intersectoral legalinstitutions. The property of complexity is characteristic, to a greater extent, for thebranch of law.The presence of conflicts in various branches of law indicate inter-sectoralrelations of conflict of laws.The analysis made it possible to determine the conflict of laws as aregulatory cross-sectoral functional legal institution, which is based on General andspecial principles of law, has its own subject of legal regulation, consisting of legalnorms of various branches of law, regulating social relations associated with thechoice of the applicable law and developing a universal mechanism for resolvingand preventing conflicts of international and national law.In paragraph 3.3, «the Institution of conflict of laws in private internationallaw», it is noted that the existence of conflicts in the internal law of a particularstate has been known for a long time.
The existence of local law and order as aresult of its own communal statutes in Italy, the various coutyums in France, or the«Pravda» in Germany in the middle Ages, and the problem of the application andchoice between them of the necessary rule of law points not to the exclusiveinternational character of conflict of law, but also to the internal problems of thisinstitution of law.In order to determine the relationship of conflict of law with the Institute ofinternational conflict of law, an analysis was conducted to identify what these legalentities converge and what is not, to compare their goals, means and structures.The analysis allowed to conclude that due to the natural differences ofcollisions in the international private law and national law are not identical and theset of tools used to resolve conflicts, and subject composition, and the subject oflegal regulation, however, the overall goal, purpose and consolidation of the rulesof private international law in national law has led to the conclusion about theexistence of the conflict of laws international private law in the national conflict oflaws as a subsystem.In paragraph 3.4 «Сonflict of Laws rules and their role in the mechanism oflegal regulation» investigated the essence of the conflict of laws rules and theirclassification.The problem of the priority of international treaties over domestic legislationenshrined in the Constitution of the Russian Federation was studied.
It isconcluded that in some cases independence and independence from internationallegal acts is necessary.The problem of conflict of normative legal act with the principles ofhumanity and justice was investigated. In the process of making a decision, a judgemay face a legal conflict, while a new law in comparison with the old one may notprovide additional protection, but, on the contrary, be unprofitable for the subjectsof legal relations. In this case, there are questions: «How to be a judge, if there is asimilar situation? To observe the principle of legality, violating the principle ofhumanism and justice? Or to make a humane and fair decision contrary to theprinciple of legality?».
In this case, it was suggested that the criterion of protectionof interests should be used to resolve such a conflict.The problem of adoption of the «law of laws» was also investigated. Theneed to adopt a Federal law about normative legal acts in the Russian Federationhas been discussed in the Russian legal science. In the dissertation research theobjective necessity of adoption of such law and fixing of the status of conflictnorms as the mechanism of permission of possible collisions between norms of thelaw is noted.In conclusion, the main conclusions on the dissertation research and theprospects for the development of conflict of laws.The main results of the research are presented in the following workspublished by the author:Articles published in leading peer-reviewed journals recommended by theMinistry of education and science of the Russian Federation for publication of themain scientific results of the dissertation:1.
Milinchuk D. S. Conflicts between national and international legislation inmunicipal law / / Vestnik of Nekrasov Kostroma state University. 2015. No. 4. P.203-205.2. Milinchuk D. S. Stability of legal phenomena in the context of legalvalues: concept, features, ways of achieving // Russian journal of legal research.2015. № 4 (5). P. 15-19/3. Milinchuk D. S. Conflict of laws as an interdisciplinary Institute of theRussian law system. Vestnik of Nekrasov Kostroma state University. 2016. No.
1.S. 196-198.4. Milinchuk D. S. «Тo Be or not to be» of conflict method of legalregulation? // Studyings on intellectual property. 2016. Vol. 24. No. 1. P. 104-122.5. Milinchuk D. S. Conflict of laws as one of the reasons of obstacles forcreation of uniform application of norms of the law in Russia // Vestnik ofLobachevsky Nizhny Novgorod University. 2018. No. 3. S. 133-139.Articles published in other publications:6.
Milinchuk D. S. Problems of harmonization of law as a way to eliminateand prevent conflicts // chapter in the book: Theory of state and law. Materials ofthe theory of state and law section of the VI International scientific and practicalconference «Kutafin readings» - «Harmonization of the Russian legal system in thecontext of international integration». - M.: Prospect, 2014. P. 84-88.7. Milinchuk D. S. Determination of the place of structural elements in thesystem of law as one of the tasks of legal science (on the example of conflict oflaws) // chapter in the book: National development strategy and objectives of theRussian legal science: collection of reports of the International scientific andpractical conference, plenary session, sections of the theory of state and law,comparative law, history of state and law, «Philosophy of law» (Moscow,November 24-December 3, 2015).
M.: Prospect, 2016. C. 173-177.8. Milinchuk, D. S. Protection of the interests as a criterion for resolvingconflicts // chapter in the book: the Interests of law. Zhidkov's readings = Interestsin Law. Zhidkov's readings: proceedings of the all-Russian scientific conference.Moscow, 25-26 March 2016 / resp. edited by M. V. Nemytina. - Moscow: RUDN,2017. P. 420-425..
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