Academic journal article Academy of Marketing Studies Journal

Private Law Principles in Social Processes: Problem Statement

Academic journal article Academy of Marketing Studies Journal

Private Law Principles in Social Processes: Problem Statement

Article excerpt


At approbation of a subject of the private law principles relations and definition of need of the given research for the general law theory (Livshits R.Z., 1994), an indispensable condition is specification of the categorial device and the main signs of private law. The specified definition not little-known category for jurisprudence, nevertheless, still is absent widespread and significant interpretation of essence, to a perspective, the principles, methodology of private law.

Taking in attention that the fact that criteria of division of law for private and public aren't always similar in the legal doctrine (Vagina N. M., 2004), it is enough to note that most of modern Russian jurists adhere to the so-called "theory of interests", going back to Ulpian's thesis: publicum jus est, quod ad statum Romanae spectat, privatum quod ad singulorum utilitatem (1.i [section]2, Dig. de just. et jure, i, i)--"public law this that which belongs to advantage (interests) of the Roman state private--which [treats] advantage (interests) of hotel persons" (B. Novitsky and I. S. Peretersky, 1996), though recognize her shortcomings and to some extent inconsistency. It is possible to carry modern Russian jurists to supporters of this theory N. P. Aslanyan, V. A. Bublika, A. E. Zhalinsky, A. V. Kryazhkov, V. V. Kudashkin, A. Ya. Kurbatov, V. V. Lazarev, A. L. Makovsky, A. V. Malko, N. I. Matuzov, V. S. Nersesyantsa, E. V. Novikova, V. F. Popondopulo, E. A. Sukhanov, Y. A. Tikhomirov, A. F. Cherdantsev and others.

Dividing law on private and public, it is necessary to consider not only their own features, but also their various components relating both to private and to the public sphere, besides a measure of their existence: by the criterion carrying elements to this or that area on the basis of their bigger prevalence in this or that branch of law, and respectively and in the field of law private and public (Popov A.N., 1993). I have begun to put to separation of one branch of law from another it is necessary, in our opinion, not from "large" or patrimonial branches, and from a position of the analysis and a research of "bricks" thanks to which this or that branch of law in the field of the legal relationship which are specifically established by her subject works. Such initial, starting element, certainly,--precept of law (Cherdantsev A. F., 2001). law, not important, public it or private, initially represents norms which analysis allows to unite them on specific groups of the legal relationship which are rather regulated by them that in the subsequent develops into independent branch of law (Fatkullin F. N., 1987).

Still M. M. Agarkov wrote that not branches, subjective, inherent in a certain category of persons in legal relationship, but laws which are subdivided into norms are divided into the public and private laws (Agarkov M. M., 1992). L. B. Tiunova believes that, despite the settled views, at differentiation of law on spheres there is no uniform, recognized by the world theoretical doctrine criterion affecting rules of law, and also norms adjacent to him. Stable, close and permanent components are the norms which are in autonomy from "the" branch of law (Tiunova L. B., 1987).

So, the structure of norm allows defining character of private or public law at once she carries. Therefore, the legislator, by drawing up a definition of norms initially defines to what legal relationship this or that norm will be applied. Thus, considering and agreeing with the theory of absence of "pure" branches of law, it should be noted that to give an assessment to that to what sphere the norm belongs it is worth proceeding from the principle of that what character she has--publicly or private--law, but not from this to what it is carried "on paper"

Differentiation of law, respectively, and consistently in process of the analysis differentiates, and in some cases and will define similarities of structural elements were also legal principles enter. …

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