Public and private law in legal systems. Public and private law. Private and public law

Private law is a branch whose rules can protect public welfare. All norms are directly related to how the state operates, how social tasks and goals are achieved.

Characteristics of public law and what applies to it

The characteristic is as follows:

Relations between state bodies and citizens of the country.
State relations with public associations.
Relations between the state and economic structures.
Relationships between bodies within the state.

The state controls and ensures all possible interests of both society as a whole and separately of any group or category.

Public law is an authoritative body that can dictate and indicate the behavior of certain sections of the population or individual citizens. If the rules are not followed, the violator will be punished in the form of legal liability.

Regulation of public law occurs with the help of categorical norms. These norms cannot be changed with the help of participants in legal relations. In public relations, the inequality of the parties is considered. On one side is the state, and it can also be replaced by any body or official.

What industries are included in:

constitutional;
financial;
administrative;
criminal;
penal;
international public;
procedural.

Law was divided into public and private back in Ancient Rome. Previously, the public was referred to the Roman state, namely its position. The private referred to the benefit of individuals. But now such a division is quite rare.

On video the main branches of private law:

The private law system includes:

civil;
family;
labor;
land;
international private.

Civil law of Russia

What is this branch of law? This is a complex of industries that can extend their influence to regulators and individuals. Civil law is capable of regulating property relations, as well as non-property relations, but related to property.

Law can also regulate family relationships. Civil law regulates the relations between owners and any associations in their joint activities.

Civil law performs the following functions:

Regulatory. This function helps to create certain normal conditions that can direct economic development in the right direction. At the same time, the economy will develop and function well.
Security function. It helps protect against possible crimes. This function is usually considered as a restorative element.

The listed functions can fully characterize the civilian. Also, the signs of civil law can fully reveal civil law.

Principles of law:

All participants are legally equal.
Property is inviolable. The exception is when the forced alienation of property takes place in court.
Arbitrary interference is unacceptable.
When concluding a contract, freedom is maintained between the parties.
To exercise your rights, you need to show independence and initiative.
Civil law cannot be abused. If the abuse leads to harm, then it is punishable.

An example of civil law is the conclusion of a transaction between two parties with the participation of a third party or intermediary. When concluding one type of transaction or another, each party retains its rights. The mediator controls the process.

Family law examples

The Family Code of the Russian Federation is the main and main source of family law. Civil relations arise between family members, which are often used in practice. A marriage is considered valid if it was concluded in the registry office and also recorded in civil status acts.

On video family law, a branch of private law:

The family law is capable of regulating the conditions for citizens to enter into marriage, the termination of marriage ties and the recognition of marriage as invalid. In addition, relationships within the family are regulated. To get married, it is enough to come to the registry office and submit an application, which will serve as the basis. Marriage is registered 1 month after filing the application. But sometimes circumstances arise in connection with which marriage can be concluded earlier or later. If you need to do this later, then no more than 2 months after submitting a written application.

Persons who have reached the age of 18 can marry. Special circumstances are taken into account if marriage is required between the ages of 16 and 14.

There are also a number of conditions that contradict marriage. Marriage cannot be concluded between relatives. If one of the applicants is already married, then he cannot remarry. Sometimes a medical examination is required to confirm a person's mental and physical health. But they do this only with the permission of the spouses.

Family law also provides for cases in which a marriage ceases to exist.

This could be the death of one of the spouses, divorce through an application submitted to the registry office. Either spouse can dissolve the marriage. On the other hand, a law is being considered that says that it is impossible to dissolve a marriage unilaterally if the appropriate conditions are met. If the wife is pregnant, then the marriage cannot be dissolved without her consent. And this cannot be done within a year after giving birth either. If the spouses have no complaints, then in court they can dissolve the marriage without any problems.

Another point provides for family law: the recognition of marriage as invalid. In what cases does this happen?

If the conditions were violated when the marriage was concluded. For example, they were forced into marriage when the spouses were underage. If one of the spouses concealed the fact of having HIV infection or a sexually transmitted disease, then the marriage is considered invalid. A fictitious marriage is also considered invalid.

Labor law in the Russian Federation

This branch of law regulates relations that arise in private and public enterprises. All participants in labor relations should be interested in this. Every person has the right to work. Work can be independent or hired. Often in practice you can find a mixed form.

From the proposed options, a person can choose the appropriate one. But the most common is wage labor. As a result, a person enters into a relationship that arises between an employee and an employer. The relationships that arise are subject to regulation. Parties or subjects are employers, the entire team, an enterprise in any form.

The most important role of labor law is to regulate the relationships that arise in the process of people’s work. At the same time, conditions must be protected, improved, and supported in any way possible by the employee. Social partnership within the team must be strengthened.

What can be classified as examples of manifestations of labor law:

Training of workers in production, improvement of professional qualities.
Negotiations taking place within the team.
Worker safety.

If for any reason a citizen’s labor rights have been violated, he has the right to go to court. The trial will be launched if the plaintiff provides evidence of the presence.

Land

Land is capable of regulating relations that arise as a result of the use of land, both real estate and any natural object. The earth is inextricably linked with other objects of natural origin. This could be water, forests, flora and fauna. As a result, all land legal relations are connected with other natural objects.

A plot of land is the top fertile layer of soil that a person can use to extract benefits for himself. This piece of land has strictly defined boundaries. A person can use the land without going beyond these boundaries.

Any plot can be divisible and indivisible. A plot is divisible when, after division, each of the plots represents an independent plot of land.

Subject of land law: relations arising from the use of land and its protection. As a result, the land serves as the basis for the lives of citizens using this plot. The source of land law is the legal and regulatory acts that were adopted by the competent authorities.

As an example of land law, we can consider the division of land or the use of only one’s own plot of land. If someone else's territory is affected, this may entail liability.

International private law

This right is a set of rules that regulate civil relations, labor, family and marriage relations. All these relations must be international in nature.

Video examples of areas of private law:

If we decipher the concept of private international law, then we can say that relations are simply complicated by the participation of foreign entities in them along with participants of citizens of the Russian Federation. Or relations should arise on the territory of the Russian Federation with the participation of foreign parties. As a result, they take the form of an international character.

What is the concept, subject and method of the branch of civil law is detailed in this

Foreign legal entities or simply foreign persons can participate in private international law. The object can be property, rights to property, things that are located abroad.

As an example, we can consider a situation where an international company signs a certain agreement with a company from Russia.

CONTENT

Introduction………………………………………………………………………………3

Chapter 1. General characteristics of private and public law………………….…6

1.1. Modern content of the concepts “private” and “public”………………....6

1.2. Criteria for distinguishing between private and public law……………………...13

Chapter 2. Private and public law in the legal system Russian Federation..26

2.1. Basics of classification and relationship between industries and legal blocks

in the Russian legal system……………………………………………………………...26

2.2. Interaction of private and public law………………………………. .36

Conclusion…………………………………………………………………………………..44

List of normative acts and literature used……………………48

Introduction

The question of dividing law into private and public, as well as the most successful criterion for their delimitation, is currently acquiring great interest both for the science of law and in a practical sense.

In the theory and practice of modern Russia, which is actively introducing the institutions of a market economy, the idea of dividing law into public and private is being revived. The increasing impact of the modern state on economic relations, as well as the growth of its social activities aimed at ensuring the material and spiritual needs of people, their rights and legitimate interests, determine a tendency towards closer connection and interpenetration of the norms of public and private law.

The combination of rules of public and private law, their mutual penetration increases the creative possibilities of law, its effective impact on economic transformations, and accelerates the process of formation of civil society and the rule of law.

The importance of developing problems of private and public law is due to the need to improve legal regulation in modern Russia.

The development of this problem contributes to the enrichment and development of the theory of law, the deepening of ideas about law, its internal taxonomy, the forms and methods of the influence of law on social relations, and the strengthening of its regulatory capabilities in the context of reforming Russian statehood.

It should be noted that until very recently, insufficient attention was paid to the development of problems of private and public law by legal theorists.

The above provisions necessitate a comprehensive study of the problems of private and public law by specialists in the field general theory law, with the participation of state scientists, administrators, civil lawyers and representatives of other branches of legal science.

Relevance of the work is caused by the complication of connections and relationships of society, the complex nature of which objectively requires the integration of law into private and public legal blocks, which raises the need to define new facets of community and differences between branches of law in order to more fully use the potential capabilities of the legal system in ensuring effective legal regulation.

In order to enhance the effectiveness of legal regulation, a balanced account of the private and public in law is necessary. It is required to critically comprehend the attempts found in the literature to re-evaluate, even to the point of changing, the role of both public law and private law principles in the development of the Russian state, and to contrast these areas of law.

Object of study is a complex of theoretical and practical problems related to the regulatory and protective impact of public and private law, as well as the means and methods of such impact.

Subject of study– these are concepts, principles, values of public and private law; criteria for their delimitation; the basis for the classification and interaction of industries and legal blocks in the Russian legal system; the place and role of public and private law in the legal system of the Russian Federation; interaction of private and public law in the process of legal activity.

The purpose of the study is to carry out a comprehensive historical and theoretical analysis of the problem of the relationship and interaction of public and private law in the process of implementing the regulatory and protective functions of law.

In accordance with this goal, the following were decided tasks:

Analyze the content of the concepts of private and public law, identify trends in the development of private and public law;

Study the criteria for distinguishing between private and public law;

To develop the basis for the classification and interaction of industries and legal blocks in the legal system of modern Russia;

Establish objective prerequisites for the interaction of private and public law.

The theoretical basis of the study was the work of domestic and foreign legal scholars, philosophers, sociologists, historians, economists, political scientists, cultural experts, etc.

In the process of theoretical and legal analysis of private and public law, the works of outstanding Russian thinkers of the past were involved - S.A. Muromtseva, I.A. Pokrovsky, G.F. Shershenevich and others.

Among domestic works on legal topics, the works of S.S. were analyzed. Alekseeva, V.G. Grafsky, O.S. Ioffe, V.S. Nersesyants, I.B. Novitsky, E.A. Sukhanova, Yu.A. Tikhomirova, B.B. Cherepakhina and others.

In addition, the work used the norms of Russian legislation.

The methodological basis of the study was the method of cognition of socio-legal and state-legal phenomena, including the theories and ideas themselves, in their historical development and at the same time in their interrelation, interdependence, from the point of view of the connection between theory and practice, history and modernity.

Historical-legal and comparative methods of scientific knowledge were also actively used.

The practical significance of the work lies in the fact that its materials can be used in the educational process when studying the general theory of law and state, the history of legal doctrines, the history of state and law, and the philosophy of law.

Chapter 1. general characteristics private and public law

1.1. Modern content of the concepts “private” and “public”

The division of law into public (jus publicum) and private (jus privatum) was recognized already in Ancient Rome. Public law refers to the position of the Roman state; private - which refers to the benefit of individuals - this is the point of view of Roman law. Subsequently, the criteria for classifying law as private or public were clarified and received more detailed characteristics, but the recognition of the scientific and practical value of dividing law into public and private remained unchanged.

A different situation was typical for the Russian legal system, which for a long time did not know the division of law into private and public. The reasons for this were not the peculiarities of the legal system, but mainly the absence of the institution of private property.

Only after the collapse of the USSR and the recognition by the legislator of the right of private property, the division of law into private and public again appeared, which was reflected in many works on the theory of law. Moreover, the emerging institutions of a market economy and the recognition of private property are moving the problem of dividing rights into public and private from the realm of theoretical reasoning to the practical plane.

It has been rightly noted that the question of dividing law into private and public and their relationship affects all aspects of human existence: the relationship between freedom and unfreedom, initiative, autonomy of will and the limits of state intervention in civil life. The main meaning of dividing law into private and public in this regard is that in this way the constitutional formula “man, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the duty of the state” (Article 2 of the Constitution of the Russian Federation) receives subject-legal embodiment in the entire national legal system.

The division of law into private and public means legal recognition of areas of public life in which intervention by the state and its bodies is legally prohibited or limited by law. This excludes (legally) the possibility of arbitrary intrusion of the state into the sphere of personal freedom, legally legitimizes the extent and boundaries of the “direct order” of the state and its structures, and legally expands the boundaries of freedom of property and private initiative.

No less significant is the fact that the distinction between public and private law principles in the post-socialist transition period is necessary for the process of denationalization of property, the psychological liberation of public consciousness from the belief in the omnipotence of state paternalism. The introduction of this principle into social practice will eliminate the statist approach to law and put a barrier to the unrestrained rule-making of the state, the desire of the ruling elite, identifying itself with the state, to thus impose its will on the entire society.

The integration of Russia into the community of European states - the Council of Europe - presupposes the internationalization of the Russian legal system, the convergence of national legislation with European law. It is clear that making the right to private and public, recognized by the legal systems of all European countries, will help solve this problem.

Which branches of law belong to private law and which to public law?

The essence of private law is expressed in its principles - independence and autonomy of the individual, recognition of the protection of private property, freedom of contract. Private law is the law that protects the interests of a person in his relationships with other persons. It regulates areas in which direct government regulatory intervention is limited. In the scope of private law, an individual independently decides whether to use his rights or refrain from permitted actions, enter into an agreement with other persons, or act in another way.

The scope of public law is a different matter. In public legal relations of the state, the parties act as legally unequal. One of these parties is always the state or its body (official) vested with authority. In the sphere of public law, relations are regulated exclusively from a single center, which is state power.

Private law is an area of freedom, not necessity, decentralization, not centralized regulation. Public law is the sphere of dominance of imperative principles, necessity, and not of autonomy of will and private initiative.

The system of public and private law is determined by the nature of public and private law, the characteristics of the national legal system. Taking this into account, the public legal and private legal systems can be presented as follows. Public law: constitutional law, administrative law, financial law, criminal law, environmental law, criminal procedure and civil procedure law; international public law. Private law: civil law, family law, labor law, land law, private international law.

Of course, there is no absolute public or private law sector. Public law elements, as V.V. Lazarev rightly notes, are present in the branches of private law, as well as vice versa. For example, in family law, public law elements include the judicial procedure for divorce, deprivation of parental rights, and collection of alimony.

In land law, the public law element has a significant manifestation - the determination of the procedure for land management, provision (allocation) of land, seizure of land, etc. In relation to each specific branch of law, a combination of these legal techniques takes place.

The boundaries between private and public law are historically fluid and changeable.

Thus, the change in the forms of land ownership in the Russian Federation fundamentally influenced the nature of land law, which came under the “jurisdiction” of private law (although retaining public law elements). The same reasons determine changes within the branches of private and public law. In this case, we can talk about two trends: intra-industry consolidation and differentiation. It can be assumed that such branches of law as criminal procedure and civil procedure and branches of legislation - administrative procedural and arbitration procedural - are being consolidated into a single branch of public law - procedural law. It has been suggested that family law will be “absorbed” by civil law.

As for intra-sectoral differentiation, the prerequisites have already been created for separating municipal law from constitutional law. Based on the experience of foreign countries, it can be assumed that there will be a spin-off of tax law from financial law (in the USA, for example, this is the largest industry).

The legal system is under significant influence of the subjective factor - the rule-making activity of the state. Accordingly, this factor will also have a significant impact on the relationship between private and public law. Obviously, it can be assumed that if the idea of a strong state prevails, this will simultaneously mean a strengthening of public legal principles in public life. If the principle of the state being bound by law turns out to be a real fact, then private law principles will expand their spheres of influence.

Nowadays, private law is understood as a set of rules governing private legal relations. This thesis assumes the primacy of social relations subject to legal regulation in comparison with legal norms: the latter arise precisely as a means of regulating certain relations; this thesis is more true in relation to private relations, which “exist in society without direct dependence on their regulation by the rules of law,” and to a lesser extent – in relation to public ones, since at the dawn of the state the latter actually arose spontaneously and only as they developed societies were subjected to increasingly scrupulous legal regulation, while in the conditions of a modern rule of law public relations “can only act as legal relations.”

Identification of the criterion for delimiting private legal relations from all other legal relations requires analysis various elements and characteristics of legal relations. Taking into account this analysis, the only common property of all private relations, which justifies the application of the characteristic “private” to them, seems to be the social practice of human civilization determined by the admissibility, possibility, desirability, and sometimes the necessity of their occurrence, change and termination, as well as the determination of legal content (the rights and obligations of the parties) mainly at the will of their participants, that is, with the exception of arbitrary interference of any other persons, including and first of all, public authorities.

Indeed, citizens can and should be “trusted” to acquire and use property, trade, perform work and provide services, create and use works of literature and art and inventions, bequeath and inherit property, marry and raise children, be hired and provide such by his own will and in his own interest, each time independently determining the conditions for the implementation of such actions. Attempts to organize the regulation of this kind of relations on other principles, allowing or presupposing the possibility or obligation of subordinating the behavior of participants in such relations to the will of a person not participating in them, as history shows, either turned out to be fruitless, or became the cause of such disastrous consequences in the regulated sphere that their social the harm repeatedly “overshadowed” the benefits that this kind of intervention was aimed at achieving. This property of private relations is determined by the fact that in them - and this characteristic should be considered as the most important criterion for distinguishing private and public relations, making it the basis for the definitions of the relevant concepts - the individual interests of their participants are primarily realized.

Relations in the field of public administration, protection of public order, authoritative resolution of disputes, defense and ensuring public safety, ensuring the property basis of these areas are unacceptable to build on the basis of the free discretion of the parties. This area excludes both the voluntariness (for at least one of the parties to the legal relationship) of entering into a relationship, and the possibility of freely determining its content; such legal relations presuppose a unilateral power influence of one of the participants in the relationship on the other, which gives rise to the possibility of abuse on the part of the authorized person and, as a consequence, the need for scrupulous legislative regulation of all conceivable nuances of the development of relations with a comprehensive definition of the rights and obligations of both parties, because in public relations it is realized ( in some cases - along with the individual interests of one or more of its participants) public interest, defined by Yu.A. Tikhomirov as “the interest of a social community recognized by the state and secured by law, the satisfaction of which serves as a guarantee of its existence and development.”

K.Yu. Totyev considered it necessary in the definition of public interest to reveal both components of the concept under consideration, defining the latter as “a vital state of large social groups (including society as a whole), the responsibility for the implementation (achievement, preservation and development) of which lies with the state”, without binding public interest with right.

The validity of using the criterion of interest implemented in a legal relationship has been thoroughly proven by S.V. Mikhailov, who argues both in favor of the material criterion for distinguishing private and public law, and in favor of defining the subject of private law through the category of interest. At the same time, it seems extremely important to highlight one feature of the application of the criterion of interest indicated by the author, which was not given due attention in his work, and precisely thanks to which the use of this criterion becomes possible.

The criterion of interest (as the historically first one developed by legal science) was, in principle, the object of criticism, including justified criticism. However, criticism of the criterion of interest referred, as a rule, to its interpretation, according to which “public law serves the common good, civil law serves private interests.” With this interpretation, the criterion of interest is truly vulnerable, since law as a whole and all its elements are designed to achieve a balance of private and public interests, which is noted by both legal theorists and law enforcement agencies, including the European Court of Human Rights. Meanwhile, the noted vulnerability of the criterion of interest disappears if interest is considered as a criterion for delimiting not the subsystems of law, but the areas of social relations regulated by it. The provision that private law should be called a system of legal norms regulating relations in which the individual interests of their participants are primarily realized, while public law should be called a system of legal norms regulating relations in which (including along with the individual interests of one or several of its participants) the interests of society as a whole are realized, neither the thesis of a balance of interests can be opposed, because the implementation of a private interest in a private relationship does not contradict the requirement of maintaining a balance of interests of private law, which, when regulating private relations, can, and often even must, deviate from the protection of private interest in favor of the public.

The most important formal feature of a public legal relationship, which at the same time does not form the essence of the phenomenon, is the participation in it of at least one of the parties by a subject who acts in this regard as an agent of public authority - a bearer of a public function. Such subjects may be the state or municipal entity as a whole, a state or municipal body, an official, as well as a specific subject endowed by law in established circumstances with special public functions.

1.2. Delineation criteria private and public law

The question of the relationship between private and public law is not only a general theoretical issue. It is of a clearly pragmatic nature, since the state’s right to intervene (within the limits of such intervention) in the private life of citizens, in economic, business and other spheres depends on its decision.

Representatives of one group of theories, when searching for a criterion for distinguishing private and public law, proceed from the very content of the regulated relations, paying attention to what this or that rule of law or their set regulates, what the content of this or that legal relationship is. Thus, a material criterion of differentiation is set.

Others look at the very method, method of regulating or constructing certain legal relations, at how certain norms are regulated, how this or that legal relationship is built. That is, the separation is based on a formal criterion.

Formal criteria.

Formal theories include the theory of the method of legal regulation. The essence of the theory of the method of legal regulation comes down to the fact that the issue that comes to the fore is not about the protection of any interest by law, but about the method (method) of such protection (according to a formal criterion). Proponents of the formal criterion for distinguishing private and public law also adhere to very significantly different points of view, which can, however, be reduced to three main directions.

A common feature of all these theories is that they take the very method of regulating or constructing legal relations as the basis for differentiation. One group of representatives of the formal criterion understands the question of how certain norms are regulated in the sense of the question of who is given the initiative to protect the right in the event of its violation.

A public right is one that is protected on the initiative of state authorities in a criminal or administrative court, and a private right is one that is protected on the initiative of a private person, its owner, in a civil court. Iering should be recognized as the founder of this theory, for whom self-protection of interest is important in the concept of (private) subjective law. In its developed and complete form we find this theory in Thon, who set out the following criterion for distinguishing between private and public law: in his opinion, the decisive feature is the legal consequences that the fact of violation of a given right entails: if protection of the right in the event of its violation is provided to the interested person himself, its owner, through a private law claim, then here we are dealing with private law; if the authorities must act ex officio to defend the violated right, we have a public right.

In Russian legal science, Thon's theory of the initiative of defense as a criterion for distinguishing between private and public law found its follower in the person of prof. Muromtsev, who taught that civil rights are protected only at the call of private individuals - their subjects, on the contrary, in public law the entire movement of protection comes from the will of the authorities.

The following main objections can be raised against the theory of defense initiative. The theory of the initiative of defense transfers the criterion of differentiation to the moment of violation of the law, takes the painful state of the law (legal relationship), and not the legal relationship as such, in itself.

Initiation of criminal prosecution is also possible on a private initiative, as well as the protection of public subjective rights of citizens. Often the most difficult thing is to clarify the question of who is given the initiative to defend in a particular case: the legal norm often does not give any, even indirect, instructions for resolving this issue; This should be said in particular about the norms of customary law.

Other representatives of formal theories take the legal relationship in itself and see the difference between public and private law in one or another position of the subject (subjects) in the legal relationship of active and passive, that is, the subject of law and the subject of obligation. In this way, the issue of distinguishing between public and private law is resolved by Ennekzerus, Gierke, Regelsberger, Kozak, Birman, Krome, Birling, Rogan, among Russian scientists - E. Trubetskoy, Mikhailovsky, Kokoshkin, Taranovsky.

According to this theory, the essence of the matter boils down to the following provisions: private law is the totality of legal relations between subjects, that is, legal relations between persons subordinate to the authority above them and in this sense equal to each other. Public law is a set of legal relations in which the direct or indirect subject of law or obligation is the state, as an organization with coercive power. The coercive power that the state possesses, its position of power in one or another legal relationship, gives a special character to all those legal relationships where the state acts fully armed with its power and might and dictates its will to the other side. This serves as the basis for distinguishing these relations into a special group, contrasted with legal relations between equal subjects.

It must be emphasized that what is essential in a public legal relationship is not that the subject in it is state power, but precisely the very nature of the latter’s entry into the legal relationship.

The following two objections are mainly raised against the theory under consideration. There are public legal relations between self-governing unions and their members. However, as Kokoshkin notes, the subject of rights and obligations in these relations is always not only this union, which is different from the state, but at the same time the state itself, which vests this union with coercive power. It should be noted that when the question is posed more broadly, this objection is completely deprived of all meaning; if we pay attention that the beginning of legal subordination in legal relations is possible not only when state power appears in them, but also when other power organizations of a sovereign nature play this power role. In accordance with this, it is necessary to consider as public legal relations such legal relations where one of the subjects acts as a bearer of some coercive power, whatever the grounds for this coercion, as long as it is of a legal nature.

Private legal relations with the participation of the state (supply of goods for state needs). The state does not always act in legal life as a subject of coercive power. In some cases, for reasons of practical expediency, it renounces its advantages and becomes on an equal footing with private individuals, that is, subject to the same rules of law to which they are subject in their mutual relations. In some cases, it cannot do otherwise, precisely when it enters into legal relations on the territory of another state outside its territorial supremacy. But sometimes considerations of expediency force him to do the same on his own territory.

The theory of centralization and decentralization is very closely related to the theory of the position of the subject in a legal relationship. This latter group should include Rudolf Stammler, who outlined some of the basic principles of this theory, and Prof. Petrazhitsky and I.A. Pokrovsky. For them, public law is a system of centralization, private law is a system of decentralization of legal regulation.

As Pokrovsky notes: “In some areas, relations are regulated exclusively by orders emanating from one single center, which is state power. This latter, by its norms, indicates to each individual his legal place, his rights and obligations in relation to the whole state organism and in relation to other individuals. Only from it, from state power, can orders come that determine the position of each individual person in a given sphere of relations, and this position cannot be changed by any private will, by any private agreements (Roman jurists also said: publicum jus pactis privatorum mutari non potest) . By regulating all these relations on its own initiative and exclusively by its own will, state power fundamentally cannot allow any other will, no other initiative, in these areas next to itself. Therefore, the norms emanating from state power here have an unconditional, compulsory character (jus cogens); The rights it provides have at the same time the nature of duties: they must be implemented, since failure to exercise a right is a failure to fulfill the obligation associated with them (inaction of power).

A typical and most striking example of the described method of legal regulation is the modern organization of the country's military forces. Here everything comes down to one single control center, from which alone can emanate the norms that determine the life of the whole and the position of each individual... And no private agreements can change a single feature in this situation: I cannot replace you in the service, exchange with you regiments or provide the place of an officer in your place. Everything here is subordinated to one guiding will, one commanding center: everything here is centralized.

It is this technique of legal centralization that constitutes the basic essence of public law. What is so clearly and directly felt in the field of military law represents a common characteristic feature of all branches of public law - state law, criminal law, financial law, etc.

Law resorts to a completely different method in those areas that are classified as private or civil law. Here, state power fundamentally refrains from direct and authoritative regulation of relations; here she does not mentally place herself in the position of the only determining center, but, on the contrary, provides such regulation to many other small centers, which are thought of as some independent social units, as subjects of rights. Such subjects of rights in most cases are individual individuals - people, but, in addition, various artificial entities - corporations or institutions, so-called legal entities. All these small centers are assumed to be bearers of their own will and initiative, and it is they who are given the regulation of mutual relations among themselves. The state does not determine these relations on its own and forcibly, but only takes the position of a body that protects what will be determined by others. It does not require a private individual to become an owner, an heir, or to get married; all this depends on the private individual himself or several private individuals (contractual partners); but the state power will protect the relationship that will be established by private will. If she does give her definitions, then, as a general rule, only in the event that private individuals for some reason do not make their definitions, therefore, only to fill in something missing. For example, in case of absence of a will, the state determines the order of inheritance according to the law. As a result, the rules of private law, as a general rule, do not have a compulsory, but only a subsidiary, complementary nature and can be canceled or replaced by private definitions (jus dispositivum). As a result of this, civil rights are only rights, and not obligations: the subject to whom they belong is free to use them, but is also free not to use them; Failure to exercise a right does not constitute any offence.

Thus, if public law is a system of legal centralization of relations, then civil law, on the contrary, is a system of legal decentralization: by its very essence it presupposes for its existence the presence of many self-determining centers. If public law is a system of subordination, then civil law is a system of coordination; if the first is the area of power and subordination, then the second is the area of freedom and private initiative.

This, in its most schematic form, is the fundamental difference between public and private law.” Pokrovsky I.A. draws attention to another difference between public and private law. The norms of public law are strictly coercive in nature, and in connection with this, the rights granted to individuals as public authorities also have the nature of duties. On the contrary, the rules of private law, as a general rule, are not coercive in nature, but subsidiary, complementary (Jus dispositivum), their application to individual relations can be eliminated, weakened or replaced by private determinations of the parties.

One should not, however, think that all norms of private law are dispositive and that, being dispositive, they are devoid of coercion. In reality, every norm contains an order, a command; all norms of law are imperative, coercive. A non-imperative norm is not a norm. But where in the disposition of the norm there is one or another expression of the will of a person, the impression of absence of coercion is created, but this apparent absence of coercion is also characteristic of purely coercive norms - after all, to a certain extent, criminal laws are also dispositive, since a criminal can, by violating or not violating the prohibition , to incur or not incur a punitive sanction. True, a person may, at his own discretion, enter into or not enter into an agreement of a certain content (and even then not always), but once he has concluded it, he is also obliged to fulfill the obligations he has assumed, as in cases where he is called up to serve military service or labor service, and he is obliged to go, he is forced to pay taxes, and he is obliged to pay them, etc. What is important is not that the right corresponds to the obligation to exercise it, but what this obligation is based on: whether it is on an authoritative order from the outside or on the own will of the obligated person (in whole or in part); It is also important in relation to whom this obligation is established, who can demand its fulfillment.

Thus, ultimately it all comes down to the composition of the participants in a given legal relationship and their position in this latter. Here we find close contact between the theory of centralization and decentralization and the theory of the position of the subject in legal relations. Indeed, the two theories discussed - the theory of the position of the subject in a legal relationship and the theory of centralization and decentralization - represent, in general, the same solution to the question of the criterion for distinguishing private and public law, but only in two different planes, from two different sides .

The first theory is in the plane of subjective law and legal relations, the second is in the plane of objective law. In fact, what will we have on the subjective side with centralized regulation? The subjects of the legal relationship will be, on the one hand, the ruler, the state power, which authoritatively establishes the content of the legal relationship with its orders and commands, and on the other, the subjects. With decentralized regulation, we have on both sides legal relations of subordinates, subjects equal to each other, not possessing coercive power in relation to one another, coordinated rather than subordinated subjects.

Thus, the legal relationship in the field of centralized regulation is characterized by inequality of subjects, while the legal relationship in the field of decentralization presupposes their equality.

E.A. Sukhanov holds approximately the same views, who believes that “in the end, it became obvious that this difference lies in the nature and methods of influence of law on regulated relations, determined by the very nature of the latter... Civil (private) law in any The legal order regulates, first of all, various relations regarding the ownership or use of property, differing in that they are based on the legal equality of participants, autonomy of will and their property independence (separation). Property relations may not be based on these characteristics, for example, relations regarding the formation of the state budget by levying taxes or paying fines for offenses. In these cases, between the participants there are relations not of equality, but of power and subordination, excluding the autonomy of the will (that is, discretion) of the parties themselves. This kind of relationship, based on the authoritative subordination of one party to the other, for example, tax and other financial relations, is the subject of regulation by administrative and financial (public) law.” It is necessary to keep in mind that equality or inequality is discussed here only from a legal point of view, about legal equality or inequality, which may not correspond to the actual one, which is a direct result of economic relations.

Material criteria.

Material theories actually include the theory of interest and the theory of the subject of legal regulation. Thus, in accordance with the theory of interest, public law serves public benefit, and private law serves private benefit. For a long time, jurisprudence was content with the definition of this difference, which was given by the ancient Roman jurist Ulpian about the division of law into public, which relates to the position of the state, and private, which relates to the benefit of individuals.

Among the representatives of this group, immediate followers of Ulpian, we can note K.F. von Savigny, Arens, Merkel, partly Dernburg, and among Russian scientists - Shershenevich G.F., Petrazhitsky L.I., Egorov N.D.

According to N.D. Egorov: “The distinction between private and public law is based on what is at the forefront in the legal regulation of public relations: the protection of public interests or the protection of the interests of private individuals. The rules of public law are formulated in such a way that they protect primarily public interests and through this ensure the protection of the interests of individuals, both participating and not participating in public relations regulated by these rules of law. The norms of private law are aimed primarily at protecting the interests of private individuals participating in public relations regulated by these norms, and thereby ensure the protection of the interests of the entire society as a whole, interested in the normal functioning of these social relations.”

Public and private interests are inextricably linked, and from this point of view, many public bodies of the state apply the institutions of private law. The Roman definition of the essence of civil law could not resist such critical questions, and science was forced to look for new ways.

According to the theory of the subject of legal regulation (also according to the material criterion), the difference between public and private law lies in the matter itself, in the very content of the regulated relations.

For some time, the view was quite widespread that the only theoretically correct area of civil law was the area of property relations (Kavelin K.D., Meyer D.I.). However, D.I. Meyer proposed limiting himself to the exclusion of personal family relations from civil law, but agreed that regulated property relations should be private law. While K.D. Kavelin spoke about revising the classification of branches of law and including in civil law tax relations, relations regarding pension payments and any other property relations included in the subject of other branches, combining them in one branch.

A logical continuation of this conclusion is his proposal to replace the traditional name “civil law” with a new one – “rights and obligations regarding property and obligations”. However, when criticizing the position of the scientist, we should not forget that he proposed to replace not only one element of the traditional classification, but the classification itself as a whole. In his opinion, if the functional unity of legal regulation makes a precise division of law into public and private impossible, then this is inappropriate (but it does not follow from this that such a division does not exist at all). In his opinion, the main division of law is its division into property and non-property, each of which contains both private and public elements. In this case, the former determine the degree of freedom of activity of an individual in property or non-property relations; the second are the conditions and grounds for properly organized cohabitation of people in society and the state in the same relationships.

Developing this and other ideas of K.D. Kavelin, some modern civilists (for example, V.A. Belov) believe that “it is with this interpretation that the term “private civil law”, which was extremely widely used by the forefathers of Russian jurisprudence - A .Artemiev, V.Kukolnik - “Initial foundations of Russian private civil law” 1813-1815, K.Nevolin, L.Tsvetaev, Velyaminov-Zernov - “The experience of drawing up Russian private civil law” 1814, 1815. Only with this understanding does the question about the relationship between private and civil law and the emergence of such phenomena as complex regulations and intersectoral legal institutions receive an answer.

However, the use of this term can only mean the underdevelopment of civil law of that time, and as a result, its identification with Roman law - jus civile, both private and public, which determined all the rights of Roman citizens. While private law (jus privatum) contained rules that had in mind the benefit of all private individuals.

Thus, among the Romans, private law was part of civil law.

In the Middle Ages, Justinian's codes began to gain force in Western states under the name of the code of civil law (corpus juris civilis). But since decisions relating to private law relations were mainly borrowed from them, the name “civil law” little by little became identified with the term “private law”.

Based on the analysis of various theories of delimitation of private and public law into formal and material criteria, it is necessary to come to the conclusion that each of these theories contains a grain of truth and notices certain features of reality. In this regard, to a certain extent, supporters of combining material and formal criteria are right. Their mistake lies only in the fact that they strive to use both criteria simultaneously for the same purpose, whereas each of them has a completely independent meaning and scope. For a comparative assessment and understanding of the relative weight of the material and formal criteria, it is also necessary to keep in mind the historical variability of the boundaries between private and public law, as well as the absence of a sharp demarcation line between these two legal areas at any given moment. What in one historical period is the sphere of public law regulation, at another time may be transferred to the field of private law.

Using the example of contemporary law, we always have the opportunity to see how great is the interweaving and penetration of public legal elements into the area of private law, its “publication” and vice versa. Therefore, each of these two types of legal regulation is effective only when it is applied to those social relations that, by their nature, require precisely this type of legal regulation.

Thus, as it seems, the division of law into private and public should be based on a formal criterion of differentiation. This distinction should be made depending on the method of constructing and regulating legal relations inherent in the system of private and public law. To this it should be added that if judicial proceedings can be initiated at the initiative of a private individual, by his will and in his interests in a dispute from legal relations built on the principles of coordination, then such a legal relationship undoubtedly relates to private law.

The private law relationship is built on the principles of coordination (legal equality and autonomy of will) of subjects, regardless of the discretion of state authorities. At the same time, “state power is obliged to recognize, constitute and enforce this legal significance and ensure that all controversial polls are resolved by an independent court.” Private law is also a system of decentralized regulation of public relations.

The public legal relationship is built on the principles of subordination (power-subordination of one party to the legal relationship to the other party by virtue of the law) of subjects. Public law is a system of centralized regulation of social relations.

The criteria for dividing law into private and public are especially clearly manifested when considering individual institutions (primarily civil law), rather than branches of law.

Chapter 2. PRIVATE AND PUBLIC LAW

IN THE LEGAL SYSTEM OF THE RUSSIAN FEDERATION

2.1. Basics of classification and relationships between industries

and legal blocks in the Russian legal system

Large blocks in the legal system include public and private law - division of the legal system into norms regulating state (constitutional) relations relating to socially significant social interests (public law), and norms regulating private interests: personal property, family and marriage and so on. (private right). This division of the legal system into public and private law was proposed by the jurists of Ancient Rome. But they also noted a certain convention of such division, since many “public” legal decisions inevitably influence personal interests, and the latter are in one way or another connected with general social relations. However, the history of legal development shows that the recognition of private law (civil law in the modern reading) is of great social importance, since it brings to the fore the citizen, the individual, asserts his economic, personal, cultural rights, and does not obscure these rights by the state legal block .

The presence of private rights makes their bearer an active participant in public, especially economic life, makes him politically independent, and contributes to stability and predictability of social relations. It should be noted that the development of private law is a planetary trend. In modern Russia, it was embodied in the adoption of the Civil Code (first and second parts), and many other legal acts. The distinction between the subsystems of private and public law gives the most general idea of the structure of law and the internal structure of the system of legal norms.

Subsystems are the largest structural divisions in the legal system. Upon closer examination, the legal system (and its constituent subsystems) distinguishes between branches of law and legal institutions. Namely: the system of legal norms as a whole (and its constituent subsystems) is divided into branches of law, which in turn are divided into sub-sectors and legal institutions.

A branch of law is a set of legal norms that regulate social relations of a certain type by a certain method. The doctrinal distinction between branches of law is based on objective differences in the subjects of legal regulation, that is, the types of social relations regulated by law. The uniqueness of regulated relations (the subject of regulation) determines the method of legal influence on them: one or another combination of prohibitions and permissions, the predominant dispositiveness or imperativeness of legislation, the specifics of sanctions. This does not mean that each branch of law has its own unique method of regulating social relations. But the methods of the branches of private law and public law are fundamentally different.

Thus, for private or civil law, a dispositive method of regulation is more typical. Officially recognized norms of private (civil) law formulated in law often only offer a model of behavior in typical situations (dispositive norms). Subjects of private law, formally equal and independent of each other, regulate their relations by contracts (the so-called autonomous legal regulation). At the same time, they can use the proposed model, but can establish other rights and obligations in the contract, because they are guided by the principle “everything that is not prohibited by law is permitted.” But in private law there are also mandatory rules, the violation of which entails the invalidity of the contract.

On the contrary, in the branches of public law - constitutional, criminal, administrative, procedural - only imperative norms apply that prohibit unlawful behavior or require the unconditional fulfillment of certain duties. For example, constitutional, procedural and administrative legal norms establishing the competence of state bodies and the powers of officials require the exercise of this competence and prohibit going beyond its limits. In public legal relations, state bodies and officials are subject to the requirement “everything that is not permitted by law is prohibited.”

The branch (sub-branch) of law is divided into legal institutions - separate groups of legal norms regulating homogeneous relations.

The closest systemic connection between individual legal norms exists within institutions. A branch legal institute is a group of legal norms regulating homogeneous relations within a branch of law, an independent division of a branch of law. Thus, in civil law there are, for example, the institutions of property, inheritance, law of obligations, copyright; in the constitutional – the institutions of citizenship, electoral law and others. In addition, in science it is customary to distinguish interbranch legal institutions within the legal system - structures that have cognitive, informational and practical significance. At the same time, similar sectoral institutions are combined into separate intersectoral institutions: for example, the institution of legal liability in civil, criminal, and administrative law. In addition, the norms of different branches of law associated with a specific sectoral institute can be combined into an inter-branch institute.

Thus, the intersectoral institution of electoral law includes the norms of not only constitutional, but also administrative and criminal law regulating relations related to elections. The intersectoral institution of private international law includes rules of civil, procedural, and sometimes labor law that regulate relations with the so-called foreign element.

The branch structure of law is one of the doctrinal conclusions of legal science. Moreover, the legal doctrine distinguishes between branches of law and branches of legal legislation. Branches (and sub-branches) of law are delimited by science (doctrine). The branches of legal legislation are delimited by the legislator as legal systems develop in accordance with the conclusions of science about the branches (and sub-sectors) of law, their relationship and interaction. The set of branches of law and the set of branches of legal legislation cover the same regulatory material, but structure it differently. Distinction between branches of legal legislation provides a more detailed and more complex structuring of law.

There are only five branches of law. Firstly, this is private, or civil, law: private law as a subsystem of law includes only one branch; therefore, the branch of law called civil law is equally appropriately called private law. Secondly, there are four branches of public law – constitutional (“state”), criminal, administrative and procedural.

Branches of law differ in the type of regulated relations and methods of regulation. They have an objective purpose; their formation and isolation does not depend on the discretion of the legislator. The norms of all branches of law exist from the time when law arises. The last statement also applies to the norms of constitutional law – the norms that determine the initial legal personality of individuals. The rules of civil law (private law) describe the rights and obligations characteristic of typical relations of free equivalent exchange, and guarantee the establishment of subjective rights and legal obligations according to the principle “what is not prohibited is permitted.”

Subjects of civil law acquire and exercise subjective rights of their own will and in their own interest. Civil law regulates mainly property relations on the principle of formal equality, but it does not regulate property relations based on administrative or other power subordination of one party to the other.

The purpose of constitutional law is to establish a general legal framework for public political power. The subject of constitutional law includes, first of all, relations of the “individual-state” type. Constitutional law determines the status of full-fledged subjects.

Modern constitutions, first of all, guarantee the primary rights of the individual (the general legal status of a person and a citizen). Further, constitutional law establishes the organization of state power necessary for the sake of legal freedom. When the laws or customs of a state regulate the powers of the highest state bodies, they thereby establish the legal limits of power.

The norms that describe the general legal status of a person and a citizen thereby indirectly prohibit anyone, primarily government entities, from violating the limits of the minimum inalienable freedom. These norms guarantee freedom that excludes public or private interference (status negativus), provide citizens with the opportunity to participate in public life (status activus), and allow them to demand police and judicial protection of rights and freedoms (status positivus).

Other norms of constitutional law determine the status (powers) of the highest state bodies, delimit their competence, and establish a separation of powers that prevents the usurpation of state power and tyranny. If, instead of the separation of powers, the constitution enshrines the supremacy of one authority (“sovereignty”), then this is a fictitious constitution that imitates a limitation of power.

The specificity of constitutional law, in particular, lies in the fact that constitutional legal norms do not have sanctions. The validity of norms of constitutional law is protected primarily by criminal law. This is one of the manifestations of the systemic connection of all legal norms.

The norms of criminal law, through the threat of punishment, protect values guaranteed by constitutional law. First of all, they protect the individual from attacks on his life and health, personal freedom, honor and dignity, property, protect his integrity - spiritual and physical, inviolability of home, privacy, confidentiality of communications, and also protect the natural human environment, public security and public order, constitutional order, public administration and other social benefits.

The purpose of administrative law is to establish police powers designed to protect the same values that are guaranteed by constitutional law and protected by criminal law. This is a specific branch of law - police powers permitted by law, that is, powers that allow the exercise of public coercion up to and including violence. Since these are powers, and not arbitrarily established powers, they must be established to ensure and protect legal freedom, but not vice versa.

Administrative (police) powers of state bodies and officials are established by law (allowed by law) according to the principle “everything that is not permitted by law is prohibited.” Specifically, they are intended to ensure law and order, suppress and punish offenses, as well as to manage state-owned property and, in general, to implement laws, to carry out executive and administrative (subordinate) activities.

The rules of procedural law establish the proper legal procedure for resolving disputes, as well as the rules of criminal prosecution and the competence of the bodies carrying out procedural actions. Failure to comply with procedural rules invalidates judicial and police decisions. Due process of dispute resolution prevents arbitrary restrictions on freedom and property.

This is a judicial procedure: before the court, any subjects acting as parties to the dispute, any participants in the process are formally equal.

The norms of branches of law are officially formulated in laws (legislation) and other sources of law. At the same time, the sectoral structure of law does not coincide with the sectoral structure of legal legislation that exists in developed legal systems.

A branch of legal legislation is a set of legal norms isolated (systematized) by the legislator in accordance with the doctrinal division of law into branches and sub-sectors and in accordance with the needs of legislative regulation.

Within the branch of legislation, norms are systematized by codification (by creating a code) or consolidation (unification) of regulations related to one subject of regulation. One branch of law may correspond to one or several branches of legal legislation. Thus, the norms of constitutional law are contained only in the constitution and constitutional legal legislation, the norms of criminal law - only in criminal legislation (usually in the criminal code). But other branches of law usually correspond to several branches of legislation.

As historical development National legal systems are branching out branches of legislation corresponding to civil, administrative and procedural law. At the same time, firstly, certain sub-branches of civil, procedural and administrative law are codified as independent branches of legal legislation. Secondly, complex branches of legal legislation are being formed, consisting mainly of civil and administrative law.

For example, sub-branches of civil law are divided into separate branches of legislation, and there are several branches of private law legislation: “civil legislation proper” (civil code), as well as trade and matrimonial legislation, which are codified separately from the civil code. Essentially, trade and marriage law are sub-branches of civil law. In addition, the rules of civil law are contained in complex branches of legislation in which they are combined with the rules of administrative law.

The branching of branches of legal legislation is not an arbitrary creativity of the legislator, it has objective prerequisites. In the course of historical development, the structure of social relations subject to legal regulation becomes more complex. Accordingly, the sectoral structure of the legal system becomes more complex: regulatory material accumulates, and sub-sectors of law are separated within the sectors. These sub-sectors acquire independent significance, and the legislator can distinguish them into independent branches of legal legislation. A branch of legislation, which consists of the norms of one sub-branch of law, has its own special subject, which stands out from the general subject of the corresponding branch of law. Complex branches of legal legislation not only have a special subject, but also combine methods of regulation characteristic of private law and public (administrative) law. These are branches of private-public legal legislation.

The history of law demonstrates different options for separating sub-branches of law as independent branches of legislation. Thus, civil (private) law is characterized by the presence of a main branch of legislation - codified “actually civil” legislation, along with which independent trade legislation is possible - civil law rules governing trade relations, codified separately from the civil code. In addition, in the twentieth century, in many countries, marriage and family legislation was separated from “actually civil” legislation, and in all legal systems with a developed sectoral structure, some institutions of civil law form the basis of complex branches of legal legislation (land, economic, etc.). At the same time, the civil code acts as the main legislative form of civil law. It contains general rules and most of the special rules of civil law. No norms of civil law can contradict the norms of the civil code.

The separation of “actually civil” and commercial legislation has historical prerequisites, but is not a general pattern of development of private law. In the twentieth century, “civil law in all economically developed countries has merged with commercial law to such an extent that there are almost no cases in which commercial obligations are regulated differently from civil obligations.” In other words, trade legislation as private law, in essence, does not differ from “proper civil” legislation. At the same time, modern trade legislation is no longer just private law; it is gradually turning into the so-called economic law - complex legislation in which the norms of civil law are closely intertwined with the norms of administrative law regulating the tax regime, foreign trade, the procedure and conditions for the provision of loans, etc.

In the sphere of procedural law, on the contrary, there is no main, or “general procedural” branch of legislation. Procedural law traditionally develops in the form of two separate branches of legislation - criminal procedure and civil procedure. In addition, it is possible to form new branches of procedural legislation.

Procedural law is a legal form of public-authority application of substantive law - primarily civil and criminal. Accordingly, procedural law consists of sub-branches - civil procedural and criminal procedural law. The separation of these sub-branches is inherent in the very nature of procedural law. In the process of historical development of legal systems, first there is an accumulation of legal norms that separately regulate civil proceedings and criminal proceedings. The same type of normative material accumulating in each procedural area needs unification and isolation. This requires consolidation and then codification of the rules of civil procedure separately from the rules of criminal procedure. As a result, there is a separation of procedures for applying civil law and criminal law, and procedural sub-sectors become independent branches of procedural legislation. These areas of law have important differences.

For example, the parties to a civil process - the plaintiff and the defendant - are formally equal, formally independent entities from each other, between whom a dispute about the law arises. The parties to the criminal process are the accused (defendant) and the accusing party, which carries out the criminal prosecution of the accused. Before the court, the prosecutor and the defendant are formally equal. But in relations of criminal prosecution there is no such equality: these are relations of command and subordination. In criminal proceedings there is a presumption of innocence, but in civil proceedings there is no such presumption.

Complex branches of legal legislation combine norms that, in essence, are norms of civil law and administrative law. In the process of their legislative registration, there is a systematization of the norms of civil and administrative law, which simultaneously regulate the same groups of relations associated with a certain object (for example, land, natural resources) or with a certain activity (economic, banking)

The emergence of complex branches of legal legislation occurs as a result of the expansion of the subject of administrative legal regulation, the extension of public law to certain subtypes of relations that traditionally constituted the subject of private law. This expansion of administrative law is not the result of arbitrary lawmaking. It is objectively necessary to protect public law interests from the arbitrariness of private individuals in increasingly complex social relations.

Thus, land and other natural resources constitute special objects of property. These are natural objects that form the human habitat, the natural environment in which the population of the state exists and society develops. Therefore, land and other natural resources are an object of public interest, expressed and protected by the state. By codifying the rules of law governing relations of ownership of land and other natural resources, as well as land use relations (use of natural resources), the legislator creates complex branches of land or natural resource legal legislation. The specificity of this legislation is the administrative and legal regulation of land use (use of natural resources) regardless of the form of ownership. In particular, land legislation establishes mandatory regimes for all owners and land users for the use of lands of different categories, lands with different purposes. The purpose of land legislation is to limit the rights of land ownership based on public interest.

2.2. Interaction of private and public law

So, private and public law are two necessary components of a legal system. However, noting the very fact of the existence of two subsystems of law - private and public, one cannot help but pay attention to the phenomenon of interaction between them.

It is possible to define the interaction between various parts of law, including between its private and public subsystems, as their mutual connection, conditioned by the functioning of related legal entities within the framework of the whole - law, and serving to achieve the general goal of law - the ordering of an array of intersecting social relations. It is important to emphasize that such a relationship is developing and dynamic, if only because the boundaries between certain legal entities can be historically changeable, as indicated in the scientific literature, for example, in relation to private and public law by S.S. Alekseev, Yu A. Tikhomirov, as well as other authors. In addition, in the scientific literature it is rightly noted, in particular by N.V. Kolotova, that interaction should be understood not only as mutual connections between phenomena, but also as any active relationship between them. It seems that when assessing such a phenomenon as interaction in law, this position must undoubtedly be taken into account.

V.F. Yakovlev rightly points out: “If there is no developed private law, one cannot count on the effective development of society. If there is no developed public law, private law cannot be effective."

The systemic nature of the connection between private and public law makes it impossible to really improve legal regulation solely within the framework of one of them, without taking into account interaction.

Thus, F.M. Rayanov writes that private and public law are “...paired categories that work in interaction with each other.”

T.N. Neshataeva points out that: “... the division of law into public and private... presupposes the constant interaction of private law and public law norms. The perfection of the legal system depends on maintaining a balance between these parts and the reasonable use of references from one norm to another.”

Characterizing the connection between private and public law, V.F. Yakovlev rightly notes: “... it is necessary that close interaction between public and private law be ensured... without this, private law cannot function effectively. It must be supported by the rules of public law and the protection emanating from public law.”

Thus, the rules of private and public law cannot operate effectively without each other. At the same time, public law establishes the legal personality of individuals, ensures legal personality and security by the threat of punishment for those who encroach on life, personal freedom, property and other legal values.

Consequently, public institutions are required that ensure legal freedom and enforce compliance with legal prohibitions.

Accordingly, norms of public law are required that establish the powers of these government institutions necessary to protect law and order, to suppress and punish violations of legal prohibitions, and to resolve conflicts. Finally, we need rules governing the participation of individual subjects of law in the formation and exercise of state power.

The range of individual subjects of political participation and the degree of their participation determine the extent to which government actors will recognize, respect and protect legal freedom.

The basis and criterion for distinguishing public law is the general, state interest (implementation of public goals and objectives), while private law is a special, private interest (implementation of the goals of individuals, citizens, organizations). Public law regulates subordinate relations based on power and subordination, on the mechanism of coercion of obligated persons. It is dominated by imperative (categorical) norms that cannot be changed or supplemented by participants in legal relations. The sphere of public law traditionally includes constitutional, criminal, administrative, financial, public international law, procedural branches, basic institutions of labor law, etc. d.

Private law mediates relations of the “horizontal” type, relations between equal independent subjects. Here they prevail dispositive norms that are valid only to the extent that they are not changed or abolished by their participants. The scope of private law includes: civil, family, trade, private international law, certain institutions of labor law and some others. At the same time, there is a constant convergence of private and public law. Thus, the norms of the Constitution that secure the economic rights of citizens of the Russian Federation are being developed in sectoral legislation. There is a convergence of the norms of constitutional and civil law. Here is what G.A. Gadzhiev writes about this: “So, on the one hand, constitutional law begins to regulate the most important economic relations, including those previously considered a monopoly of private law, on the other hand, there is a strengthening of public principles in civil law.” The close interaction of public and private law leads to “a blurring of the boundaries between public and private law, to the formation of complex legal branches and institutions in which the norms of civil and public law are closely interrelated.”

At the same time, in different areas the ratio of public and private methods is not the same. There are relations that require basic regulation; there are large areas of public legal relations, the basis for the development of which is civil circulation, civil rights to property and transactions. This is the connection between the institutions of pledge, penalty, and surety in civil, tax and customs legislation. Power relations remain in the sphere of civil law when it comes to compensation for harm caused by an act of power. At the same time, the concepts and types of government agencies, their competence, and legal regimes defined in the field of public law must be strictly used in private law.

A good example of a combination of public law and private law principles is labor law. The increased role of the collective labor agreement and the expansion of the scope of contractual regulation are combined with government regulation and the establishment of minimum guarantees, with state labor protection and the participation of government agencies in resolving labor conflicts. Such an explanation of the place of labor law in the system of Russian law allows, further, to establish its connection with civil and administrative law, with the law social security. At the same time, a number of problems related to the interaction of private and public law should be noted. Moreover, despite the continuously increasing number of conflicts between private law and public law provisions in Russian legislation and law enforcement practice, as well as the aggravation of the existing contradictions between them, sometimes acquiring threatening proportions, this problem has not been adequately reflected either in legislation or in legal doctrine .

In this regard, one cannot but agree with the opinion of V.F. Yakovlev about the need to “unite civilists and publicists, that is, those who work in the field of private and public law, because without establishing an optimal relationship between both, there will be no perfect mechanism There is no regulation of economic relations and there cannot be.” V.F. Yakovlev also suggests ways to solve the problem of eliminating contradictions between public law and private law regulation of property relations. In his opinion, we can talk about at least three tasks. Firstly, establishing the optimal balance and interaction between public law and private law regulation of economic relations in general. We are talking about ensuring proportional use of administrative, financial, and tax legislation for economic regulation, along with civil ones. Secondly, it is necessary to take into account the existing penetration of one into the other, in particular the presence of elements of public legal regulation in civil legislation: provisions on licensing of certain types of business activities, on forced reorganization of legal entities, on state registration of legal entities and real estate transactions, etc. .d. And finally, thirdly, an important task is to clearly distinguish between the subjects and spheres of application of public and private law.

As for the substantive side of determining the optimal relationship between private law and public law regulation, the article by V.F. Yakovlev provides examples indicating that the formal application of civil law rules without taking into account public law rules can lead to the destruction of the foundations of the state structure. “For example, in judicial practice a problem of enormous significance emerges,” writes V.F. Yakovlev, - connected with the fact that through court decisions it is possible to completely destroy the state budget - both its revenue and expenditure parts... Claims began to be filed for the recovery from the state budget of funds that were not included in it. Claims are brought by both citizens and legal entities in order to protect rights under the Civil Code on the basis of relevant laws or government regulations. This applies to laws on veterans, on Chernobyl victims, regulations on the transfer of the socio-cultural sphere and housing to municipalities, etc. The implementation of these acts is often not supported by the budget; it does not provide for the allocation of appropriate funds. But claims are brought in accordance with the law. What should the courts do? Apparently, these requirements must be met. But then there will be nothing left from the budget. And the budget is also a law. And there are no extra funds in the budget.”

We understand the author's concern about the possibility of destroying the state budget. But in general, the formulation of the problem in this interpretation raises doubts. It turns out that participants in property turnover can demand recovery from the state only of those funds that are allocated in the budget. It turns out that the state, represented by its bodies, by developing and adopting the budget, annually determines the limits of its responsibility. Meanwhile, these limits of state responsibility are established by law. In particular, in accordance with Article 16 of the Civil Code of the Russian Federation, losses caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies, local governments or officials of these bodies, including the issuance of a state act that does not comply with the law or other legal act body or local government are subject to compensation by the Russian Federation, the relevant constituent entity of the Russian Federation or municipal entity.

A more general question also arises: can courts divide laws into successful and unsuccessful, into those subject to and those not subject to application? Such an approach would deprive the legislator of the opportunity to identify shortcomings in adopted laws, many of which appear only in the process of their application, and, therefore, improve legislation. It is obvious, for example, that if a law is not provided with funding, it is necessary to seek its revision, and not to correct it by court decisions. For the legislator, an additional incentive could be judicial practice associated with the precise and consistent application of the relevant legislative act.

And, finally, the most fundamental issues, the solution of which can form the basis for determining the optimal balance between private law and public law regulation of economic relations. What should be recognized as primary, priority: the interests of the state, its power structures or the interests of society; current legal regulation, which has the specific goal of forming the state budget for the next year, or stable rules governing property turnover; Should we adapt the current regulation to stable rules of property turnover or, each time, solving one or another operational problem, change the fundamental provisions of the legal regulation of property turnover? The answers to these questions seem obvious to us, and the questions themselves are rhetorical.

Let us add to this that the history of human development gives us many examples indicating the consequences of a neglectful attitude towards private legal regulation of economic relations. It is enough to recall the history of the last eight decades of our long-suffering country, when for most of this period everything private was rejected, including in the economy, and public legal regulation reigned supreme, and then (in the last decade) the regulation of property turnover was carried out by laws - ephemeral laws that carried out rather political objectives, rather than the role of rules regulating property turnover.

Now, when, at last, stable rules regulating property turnover, so necessary for society, have appeared, anxiety about the inconveniences of public legal regulation that has not adapted to them is obvious. If we talk about specific ways to solve the problem of determining the optimal balance between private law and public law regulation, then the existing problems in the interaction of public law and private law norms require authoritative judicial interpretation in the form of a joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation. This interpretation is intended not only to provide clarification on the practice of applying legislation, but also to lay the fundamental foundations that determine the procedure for applying in judicial practice provisions of public law that do not correspond to private law norms.

The model proposed by V.A. Bublik should also be supported: the interaction of public and private law should be based on the introduction of private law principles into public legal matter, when public relations begin to be increasingly regulated using elements of the private law method (civil tools). It would also be advisable to provide in one of the federal constitutional laws a mechanism for eliminating contradictions between public law and private law norms at the stage of preparation and adoption of relevant bills. This can be achieved by establishing a legal provision according to which rules of public law that change private law relations can be put into effect only after a corresponding change in the legislation governing these private law relations, and, on the contrary, the introduction of new private law rules must be accompanied (if necessary ) changes and public legal regulation of relevant relations.

Conclusion

Summarizing the results of the work carried out, we formulate the main conclusion to which the study led: the division of law into private and public is an integral part of the characteristics of law as a whole, and for any system of law.

The terms “public” and “private” law have been known since ancient times. Already the ancient Roman jurists operated with this term, dividing the entire vast area of law into two large spheres - the sphere of public law (jus publicum) and the sphere of private law (jus privatum).

The historical relationship between private and public law can be characterized by a state of initial unity of both, from which public and private law emerge only gradually through a slow historical process. The Roman private law system was created during the heyday of Roman jurisprudence.

The idea of dualism of law was adopted in the Middle Ages by glossators and post-glossators. The division of law into public and private acquired not only theoretical, but also practical significance, since the resolution of administrative disputes was transferred to an independent system of judicial bodies.

The dualism of law was accepted in almost all European countries, and it became the basis for the specialization of lawyers, including in the process of their professional training.

Since then, this division has been a solid property of continental legal thought, constituting an indispensable basis for the scientific and practical classification of legal phenomena.

Public law is a system of centralized regulation provided by a legal block, including norms of law, institutions and industries that determine the area of implementation of public interests, regulating public legal relations - the relations of public authorities among themselves, as well as relations between them and private individuals and their associations, built on the principles of subordination of subjects. It is characterized by features determined by the legal regime of public authority: a predominantly permissive method of legal regulation, unilateral expressions of the will of authorities as participants in relevant legal relations, hierarchical connections and the ensuing imperativeness of legal norms.

Private law is a system of decentralized regulation provided by a legal block that includes rules of law, institutions and industries that determine the area of realization of private interests, regulating private law relations - relations of private individuals and (or) their associations among themselves, enshrining freedom of contractual relations, built on the beginnings of coordination of subjects. It is characterized by a predominantly permissive method (civil method) of legal regulation, distinguished by the principles of autonomy, legal equality of subjects, their non-subordination and the resulting dispositivity of legal norms.

The distinction between private and public law, as established in the study, should be based on a formal criterion, that is, the distinction should be made depending on the method of constructing and regulating legal relations inherent in private and public law.

The most acceptable among the formal delimitation criteria is the position of the subject in the legal relationship and the sign of centralization or decentralization of legal regulation.

The increasing importance of legal regulation, expanding the scope of law and changing its role in the mechanism of social regulation leads to the fact that law is influenced by other normative and regulatory systems and closely interacts with them. In this regard, material criteria are important from the point of view of resolving the question of the feasibility (economic, political, etc.) of classifying this or that area of social relations, certain objects, as the sphere of private or public law.

The integration of law into the private law and public law blocks, without replacing the traditional sectoral division of law, complements it, defining new facets of commonality and differences between the industries included in these blocks, strengthening their relationships, expanding the possibilities of interaction in ensuring effective legal regulation.

Public law actively influences the development of private law; it determines the limits of private law activities, ensuring the implementation of individual rights and freedoms by its own methods. Individual freedom in the sphere of economic relations cannot be guaranteed by private legal means alone. Therefore, many traditional institutions of private law (including such as property) are supported by the norms of public law. At the same time, public law itself is influenced by private law.

The liberation of society from excessive government interference in private life and the revival in Russia of the idea of private law indicate not a weakening of public principles in the activities of the state, but a more complete disclosure of its social essence, social purpose, its natural evolution towards the formation of legal statehood, strengthening of public character its functions, the leading among which is the implementation of common affairs and maintaining a balance of interests in society, creating and ensuring optimal conditions for the existence of society.

Currently, Russia has again returned to the constructions of private law, widely known in civil law literature, and to an understanding of how it relates to public law.

And although in modern Russian legal science discussions continue about the relationship between private and public law, these are discussions about determining the content of recognized phenomena, and not about whether we recognize private law or not.

The problem of the relationship between private and public law is important because, thanks to its solution, many pressing practical issues could be solved. For example, what is the role of the state as a public body in the life of society, in particular in its economic sphere? What are the limits of government intervention in the economy?

These and many other questions can be properly resolved if the relationship between private and public law is understood. These concepts should neither be denied nor confused; they must be clearly distinguished.

Private and public activities are completely different types of human activity.

The first is based on a person’s own interest, his free will, the choice of a goal, the means to achieve it, the result and the process of implementation.

Other qualities characterize management activities aimed at organizing the free activity (interaction) of individuals. Public activity is not free, since it is not based on the own interests of the governing body, or on freedom of choice. It is based on the functional specification of the goal. Legislation must clearly define the tasks and functions of public authorities, their competence and powers, as well as legal procedures.

One can only regret that the opinion of B.B. Cherepakhin and other sensible scientists at that time - the 20-30s of the twentieth century, was not heard. It took many decades of wandering in the dark before Russia once again made efforts to return to the path of civilization. Freed from the “layers” inherent in a nationalized society and economy, classical private and public law is being revived again.

List of used regulations and literature

Regulations and judicial practice:

1. Constitution of the Russian Federation of December 12, 1993//Rossiyskaya Gazeta. 12/25/1993. No. 237.

2. Civil Code of the Russian Federation (Part One) dated November 30, 1994 No. 51-FZ//Collection of Legislation of the Russian Federation. 05.12.1994. No. 32. Art. 3301.

3. Civil Code of the Russian Federation (part two) dated January 26, 1996 No. 14-FZ // Collection of legislation of the Russian Federation. 01/29/1996. No. 5. Art. 410.

4. Information letter of the Supreme Arbitration Court of the Russian Federation dated December 20, 1999 No. S1-7/SMP-1341 “On the main provisions applied by the European Court of Human Rights in the protection of property rights and the right to justice” // Bulletin of the Supreme Arbitration Court of the Russian Federation . 2000. No. 2.

Literature:

1. Agarkov M.M. The value of private law//Selected works on civil law: In 2 volumes. T.1. – M.: 2002.

2. Alekseev S.S. Ascent to law. Searches and solutions. 2nd ed. – M.: NORM, 2002.

3. Alekhin A.P., Karmolitsky A.A., Kozlov Yu.M. Administrative law of the Russian Federation. – M.: 1997.

4. Belov V.A. Civil law: General and Special parts: Textbook. – M.: 2003.

5. Bergel J.-L. General theory of law. – M.: 2000.

6. Braginsky M.I., Vitryansky V.V. Contract law. General provisions (Book 1). – 3rd edition, stereotypical. – M.: Publishing house “Statut”, 2001.

7. Bublik V.A. Public and private law principles in civil law regulation of foreign economic activity. – Ekaterinburg, 2000.

8. Vaskovsky E.V. Textbook of civil law. – M.: Statute, 2003.

9. General history of state and law: In 2 volumes. T.1: Ancient world. Middle Ages. – M.: 2002.

10. Gadzhiev G.A. Protection of fundamental economic rights and freedoms of entrepreneurs abroad and in the Russian Federation. – M.: 1995.

11. Civil law. Textbook/Ans. Ed.D.L.S., prof. E.A. Sukhanov. – T.1. – M.: Wolters Kluwer, 2004.

12. Civil law. Textbook: Volume 1. 6th ed., revised. and add./Ans. ed. Doctor of Law prof. A.P.Sergeev, Doctor of Law prof. Yu.K. Tolstoy - M.: Prospekt, 2003.

13. Civil law: In 2 volumes. T.1/Ans. edited by E.A. Sukhanov. 2nd ed., revised. and additional – M.: 1998.

14. Grafsky V.G. General history of state and law: Textbook for universities. – M.: Norma, 2004.

15. David R., Joffre-Spinosi K. Basic legal systems of our time. – M.: 1997.

17. Inako Tsuneo. Modern law of Japan. – M.: 1981.

18. Ioffe O.S. From the history of civil thought//Ioffe O.S. Selected works on civil law. – M.: Statute, 2000.

19. Kavelin K.D. Rights and obligations regarding property and obligations // Selected works on civil law - M.: TsentrYurInfoR, 2003.

20. Kolotova N.V. Interaction of law and morality: complementarity and conflict: – M., 1997.

21. Course of Russian labor law: In 3 volumes. T.1: General Part/Ed. E.B. Khokhlova. – St. Petersburg: 1996.

22. Lawrence Friedman. Introduction to American Law. – M.: 1993.

23. Makovsky A.L. Is it necessary to make changes to the Civil Code? // Law and Economics. 1998. No. 1.

24. Matuzov N.I., Malko A.V. Theory of state and law: Textbook. – M.: Yurist, 2004.

26. Muromtsev S.A. Definition and basic division of law // Selected works on Roman and civil law. – M.: 2004.

27. Neshataeva T.N. On the relationship between public and private law//Public and private law: problems of development and interaction, legislative expression and legal practice: Conference proceedings. – Ekaterinburg, 1999.

28. On the tasks of the People’s Commissariat of Justice in the conditions of the new economic policy // Lenin V.I. PSS. T.44.

29. General theory of state and law. Academic course in 2 volumes/Ed. M.N.Marchenko. T.2. Theory of law. – M.: 1998.

30. General theory of law and state: Textbook/Ed. V.V. Lazarev. – 2nd ed., revised. and additional – M.: Yurist, 1996.

31. Pokrovsky I.A. Main problems of civil law. – M.: Statute, 1998.

32. Popondopulo V.F. On private and public law//Jurisprudence. 1994. No. 5-6.

33. Rayanov F.M. On the issue of the concepts of public and private law//Public and private law: problems of development and interaction, legislative expression and legal practice: Conference Proceedings. – Ekaterinburg, 1999.

34. Roman private law: Textbook / Edited by I.B. Novitsky, I.S. Peretersky. – M.: Yurist, 2004.

35. Saidov AX. Comparative law and legal geography of the world. – M.: 1993.

36. Theory of state and law: Fundamentals of the Marxist-Leninist doctrine of state and law / Edited by P.S. Romashkin, M.S. Strogovich, V.A. Tumanov. – M.: 1962.

37. Tikhomirov Yu.A. Public law. – M.: 1995.

38. Totyev K.Yu. Public interest in legal doctrine and legislation//State and Law. 2002. No. 9.

39. Labor law of Russia: Textbook for universities. – M.: Infra-M-Norma, 1998.

40. Cherepakhin B.B. On the issue of private and public law//Cherepakhin B.B. Works on civil law. – M.: Statute, 2001.

41. Chetvernin V.A. Introduction to the course of general theory of law and state. Tutorial. – M.: Institute of State and Law of the Russian Academy of Sciences, 2003.

42. Shershenevich G.F. The science of civil law in Russia. – M.: Statute, 2003.

43. Shershenevich G.F. Textbook of Russian civil law (according to the 1914 edition). – M.: Spark, 1995.

44. Yakovlev V.F. Civil Code and the State // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 6.

45. Yakovlev V.F. On the interaction of public and private law//Public and private law: problems of development and interaction, legislative expression and legal practice: Conference proceedings. – Ekaterinburg, 1999.

46. K.D. Kerameus, Ph. Y. Kozyris. Introduction to Greek Law. Kluwer Law and Taxation Publishers The Netherlands. 1993

General theory of law and state: Textbook/Ed. V.V. Lazarev. – 2nd ed., revised. and additional – M.: Yurist, 1996. – P.176.

Civil law. Textbook: Volume 1. 6th ed., revised. and add./Ans. ed. Doctor of Law prof. A.P.Sergeev, Doctor of Law prof. Yu.K. Tolstoy - M.: Prospekt, 2003. - P.19.

Yakovlev V.F. On the interaction of public and private law//Public and private law: problems of development and interaction, legislative expression and legal practice: Conference proceedings. – Ekaterinburg, 1999. – P.3.

Rayanov F.M. On the issue of the concepts of public and private law//Public and private law: problems of development and interaction, legislative expression and legal practice: Conference Proceedings. – Ekaterinburg, 1999. – P.55.

Neshataeva T.N. On the relationship between public and private law//Public and private law: problems of development and interaction, legislative expression and legal practice: Conference proceedings. – Ekaterinburg, 1999. – P.40.

Gadzhiev G.A. Protection of fundamental economic rights and freedoms of entrepreneurs abroad and in the Russian Federation. – M.: 1995. – P.6.

Yakovlev V.F. Civil Code and the State // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 6. – P.136.

Yakovlev V.F. Civil Code and the State // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 6. – P.136-138.

Bublik V.A. Public and private law principles in civil law regulation of foreign economic activity: Author's abstract. Dis... Doctor of Law. Sci. – Ekaterinburg, 2000.

The law of a particular state in its essence is a set of a huge number of legal norms regulating various legal relations. However, in order to avoid legal and semantic chaos, all these norms must be internally consistent, organized, structured, and brought into a logically consistent system. The very concept of “system” presupposes a certain holistic formation, consisting of many elements that are in a certain connection with each other (coordination, subordination, functional dependence, etc.). It is the systematic nature of law that is one of the main criteria for its development, an indicator of the level of legal culture and professional legal awareness.
A system of law is an objectively existing internal structural unity of the entire set of norms of national law, as well as the institutions, sub-sectors and branches of law that unite these norms. Systematicity in the construction of law means that all legal norms are in a certain connection with each other, which in turn presupposes consistency and the absence of inconsistent elements. Its social impact and effectiveness directly depend on the degree of consistency of norms, institutions and branches of law. Therefore, a normative legal act that is poorly “integrated” into the legal system will not only remain inactive, but can even have a destructive impact on the legal mechanism as a whole.
The objective nature of the legal system should be especially emphasized, since the very logic of the relationship between norms is objective, depending primarily on certain unchanging factors (civilizational affiliation, historical tradition, culture, way of life), and the subjective factor (the will of the legislator) is ultimately forced obey the existing system paradigm.
So, legal norms are combined into broader conglomerates.
In the legal system, the norms of law do not exist separately, but are built into formations of a higher order - legal institutions.
A legal institution is a central element of a legal system, consisting of a set of legal norms that regulate a homogeneous group of social relations. It is characterized by homogeneity of factual content, legal unity of legal norms, normative isolation and completeness of regulated relations.
The legal institution is designed to ensure the smoothness of the relations it regulates. For this reason, any legal institution performs a regulatory task unique to it and does not conflict with other structural elements of the legal system.
According to its content Legal institutions can be simple or complex.
Simple Institute includes legal norms of only one branch of law. For example, the institution of marriage, the institution of alimony obligations in family law, the institution of surety, limitation of actions in civil law, the institution of crime, punishment, necessary defense in criminal law.
Complex Institute is a set of rules from various branches of law regulating related and interrelated relations. For example, the institution of property is simultaneously the subject of regulation of constitutional, administrative, civil, family and other branches of law. Within a complex institution, so-called sub-institutions are distinguished. Thus, the institution of annuity includes sub-institutions - permanent annuity, lifelong annuity, lifelong maintenance with dependents.
Legal institutions can also be divided into substantive and procedural, regulatory and protective.
Sub-branch of law - This is a union of several institutions of one branch of law. Only large and complex branches of law include not only legal institutions, but also sub-branches of law. For example, constitutional law includes such sub-branches as municipal, electoral, and parliamentary law. In civil law, one can distinguish the sub-branches of copyright, invention, obligations, inheritance law, etc., in financial law - budget and tax law. Unlike a legal institution, a sub-branch of law is not a mandatory component of every branch of law. Thus, procedural branches of law, family, land and some other branches do not have sub-sectors.
Branch of law - This is the main element of the legal system, uniting interconnected legal institutions that regulate a qualitatively homogeneous area of social relations.
The branch of law is a relatively closed subsystem; it is a set of legal norms that regulate a qualitatively unique branch of legal relations (property, labor, family). It can be divided into general and special parts. The institutions of the general part contain rules of law that apply to all relations regulated by this industry. In the institutions of the special part, the institutions of the general part become concretized.
The branches of law are heterogeneous in their composition. Some of them are large legal bodies, some are compact. They also differ in terms of the specificity of the means of legal regulation.

The division into private and public law in different forms exists in all developed legal systems.

The division into private and public law is a division into groups that systematize legal norms that serve to ensure generally significant (public) interests, i.e. the interests of the state and society as a whole (constitutional, administrative, criminal, procedural, financial, military law) , and legal norms that protect the interests of individuals (civil, family, labor law, etc.).

Public law is directly related to the public power that the state has.

Private law is designed to serve primarily the needs of private individuals (individuals or legal entities) who have power and act as free and equal owners. Private law is associated mainly with the emergence and development of the institution of private property and the relationships that arise on its basis. Private law developed historically simultaneously with private property.

Systematization of private law norms is implemented using the following methods:

1) institutional (mentoring);

The relationship between private and public law:

1) private law is a set of legal norms that regulate and protect the interests of private owners of free market entities, as well as their relations in the process of production and exchange. At the same time, public law consists of norms that establish and regulate the work of government bodies and administration, the formation and work of parliaments, other government institutions, the administration of justice, and the fight against encroachments on the existing order;

2) private law cannot be implemented without public law, since the latter serves to protect and defend the former;

3) private law in its implementation is based on public law. In the general legal system, public and private law are closely interrelated, and their distinction is to some extent arbitrary.

Private law is a personal free right. Within its boundaries, the subject can implement it in any direction. Private law motivation has only a certain limit to the action of other motives (altruistic, egoistic, etc.). Otherwise, public legal motivation independently indicates the direction in which the law is exercised and excludes the action of other motives.

The main function of private law is to distribute material and other benefits and to assign them to specific subjects.

The main function of public law is to regulate relations between people by orders that come from a single center, which is state power.

World legal practice shows that private and public law as legal institutions play positive role in maintaining a rational balance of social interests, more flexible interaction of dynamically developing social relations, protection and implementation of human and civil rights and freedoms.

Private law is the basis of entrepreneurship and a market economy. At the same time, modern private law is divided into two types: contractual and corporate.

Private law is mainly “market law”, plays important role in creating a single legal space, and public law has an impact on state and interstate interests.

The division of law into public (jus publicum) and private (jus privatum) was recognized already in Ancient Rome. Public law, according to the Roman jurist Ulpian, is that which relates to the position of the Roman state; private - which relates to the benefit of individuals. Subsequently, the criteria for classifying law as private or public were clarified and received more detailed characteristics, but the recognition of the scientific and practical value of dividing law into public and private remained unchanged.

Soviet official legal doctrine had a negative attitude towards the idea of dividing law into private and public, considering it artificial and designed to disguise the essence of the bourgeois system. It is worth saying - the position expressed in the 20s. during the development of the Civil Code of the RSFSR 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 guideline for legal theory and practice.

The emerging institutions of a market economy and the recognition of private property are moving the problem of dividing rights into public and private from the realm of theoretical reasoning to the practical plane. It has been rightly noted that the question of dividing law into private and public and their relationship affects all aspects of human existence: the relationship between freedom and non-freedom, initiative, autonomy, will and the limits of state intervention in civil life.
It is worth noting that the main meaning of dividing law into private and public in this connection is essentially that in this way the constitutional formula “a person, his rights and rights will be the highest value. Recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state” (Article 2 of the Constitution of the Russian Federation) receives subject-legal embodiment in the entire national system of law. The division of law into private and public means legal recognition of spheres of public life, intervention in which the state and its bodies are legally prohibited or limited by law. Let us note that this excludes (legally) the possibility of arbitrary intrusion of the state into the sphere of personal freedom, legally legitimizes the extent and boundaries of the “direct order” of the state and its structures, and legally expands the boundaries of freedom of property and private initiative.

No less significant is the fact that the distinction between public and private law principles in the post-socialist transition period is extremely important for the process of denationalization of property, the psychological liberation of public consciousness from the belief in the omnipotence of state paternalism. The introduction of this principle into social practice will eliminate the statist approach to law, put a barrier on the way to the unrestrained rule-making of the state, the desire of the ruling elite, identifying itself with the state, to thus impose its will on the entire society. The integration of Russia into the community of European states - the Council of Europe - presupposes the internationalization of the Russian legal system, the convergence of national legislation with European law.

It is clear that the division of law into private and public, recognized by the legal systems of all European countries, will help solve this problem.

Which branches of law belong to private law, and which to public law?

The essence of private law is expressed in its principles - independence and autonomy of the individual, recognition of the protection of private property, and the freedom of contract. Private law is the law that protects the interests of a person in his relationships with other persons. It is worth noting that it regulates areas in which direct intervention by the state will be limited. In the sphere of private law, the individual independently decides whether to use his rights or refrain from permitted actions, enter into an agreement with other persons, or act in another way.

The scope of public law is a different matter. In public legal relations of the state, the parties act as legally unequal. It is important to note that one of these parties is always the state or its body (official) vested with authority. In the sphere of public law, relations are regulated exclusively from a single center, which will be state power. Private law is an area of freedom, not necessity, decentralization, not centralized regulation. Public law is the sphere of dominance of imperative principles, necessity, and not of autonomy of will and private initiative.

System of public and private law

System of public and private law. It is determined by the nature of public and private law, and the characteristics of the national legal system. Taking this into account, the public law and private law systems can be presented as follows (Fig. 3)

Figure No. 3. Legal system

Of course, there is no absolute public or private law sector. Public law elements are present in areas of private law, as well as vice versa. For example, in family law, public law elements include the judicial procedure for divorce, deprivation of parental rights, and collection of alimony. In land law, the public law element has a significant manifestation - the determination of the procedure for land management, provision (allocation) of land, seizure of land, etc. In relation to each specific branch of law, a combination of these legal techniques takes place.

The boundaries between private and public law are historically fluid and changeable. Thus, the change in the forms of land ownership in the Russian Federation fundamentally influenced the nature of land law, which came under the “jurisdiction” of private law (although retaining public law elements). The same reasons determine changes within the branches of private and public law. In this case, we can talk about two trends: intra-industry consolidation and differentiation. Thus, it can be assumed that such branches of law as criminal procedure and civil procedure and branches of legislation - administrative procedural and arbitration procedural - are consolidated into a single branch of public law - procedural (judicial) law. It has been suggested that family law will be “absorbed” by civil law.

The legal system is under significant influence of the subjective factor - the rule-making activity of the state. Accordingly, this factor will also have a significant impact on the relationship between private and public law. Obviously, it can be assumed that if the idea of a strong state prevails, then at the same time it will mean a strengthening of public legal principles in public life. If the principle of the state being bound by law turns out to be a real fact, then private law principles will expand the spheres of its influence.

Constitutional 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 will be social relations arising in the process of realizing the sovereignty of the Russian 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 inherent in 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 structure of a constitutional establishment is such that it does not presuppose precisely defined (personified) rights and obligations of specific subjects, participants in legal relations - constitutional regulations have a general, universal character, addressed to everyone or to many types of subjects traditionally do not give rise to specific legal relations, being implemented in the so-called general constitutional relations (for example, Article 10 of the Constitution of the Russian Federation)

Administrative law

Administrative law- a branch of public law, the subject of regulation of which will be 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 right

Financial right as a branch of public law, it is represented by a set of norms by means of which the regulation of relations arising in the process of formation, distribution and use of state monetary funds is carried out. In contrast to 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 will be the presence in its composition of sub-branches of law - budgetary, tax, banking.

Criminal law

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. It is worth noting that they prohibit socially dangerous actions and inactions of people under the threat of using special means of state coercion - criminal punishment. Criminal law as a set of legal norms is divided into General and Special parts. The General Part contains general provisions on criminal liability, the concept of a crime, forms and types of guilt, circumstances excluding criminality and punishability of an act, the procedure and conditions for criminal liability in various forms unfinished crime, responsibility for complicity in a crime, the concept and types of criminal punishment, the procedure and grounds for imposing punishment and exemption from criminal liability. The General Part also defines the conditions of probation, the concept of a criminal record and how to terminate it, the concept of amnesty, pardon, etc. If a common part establishes the general provisions, principles and institutions of criminal law, the Special Part provides for specific types of crimes and indicates the punishments that can be applied for their commission. The General and Special parts are closely interconnected and characterized by unity. This unity will remain in the fact that they perform the same tasks - protection from crimes of the individual, society, and state; the norms of the General Part will be the basis for the norms of the Special Part. The norms of the Special Part specify the general concepts of crime contained in the General Part.
It is worth noting that the special part defines and describes those types of acts that the criminal law considers crimes.

Environmental law. Civil procedural law

Environmental law- a relatively “young” branch of law, the norms of which regulate the relations of 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 Its official purpose is to establish the order and procedure for resolving civil cases by courts.

Public international law

Public international law- a set of norms and principles contained in conventions, international treaties, acts and charters of international organizations that are not an integral part of the national system of law, which regulate relations between states and other participants in international communication.

Civil law

Civil law- the leading, basic branch of private law, the subject of regulation of which will be property and related non-property relations based on equality, autonomy of will and property independence of their participants. Civil law is a multi-component branch of law; its content covers such sub-branches as copyright, inheritance, invention, etc.

Family law

Subject of regulation family law there will be personal and related property relations arising from marriage and family membership. The Family Code of the Russian Federation, which regulates these relations, as well as Part 2 of the Civil Code of the Russian Federation, came into force on March 1, 1996.

Labor law

Labor law As part of the private law system, relations regarding the use of labor in state, public and private enterprises, institutions and organizations are regulated on the basis of a combination of interests of their participants. The subject of regulation in labor law will be the relationship between the employee and the employer regarding his work. The subjects (parties) of labor relations are employees (able-bodied citizens who have reached the age of sixteen), employers or enterprises of any form of ownership represented by their administration, labor collective, in some cases administrative managers (officials appointed during the reorganization of a bankrupt enterprise in order to improve production ) and some other subjects.

Land law

Land law- ϶ᴛᴏ branch of private law regulating relations related to the ownership, use and exploitation of land.

The subject of regulation of land law will be the relations that develop between citizens, legal entities, as well as the state and its bodies in the process of realizing ownership of land, ensuring its protection and increasing soil fertility. The subjects of land law are citizens of the Russian Federation and foreign states, stateless persons, legal entities, the state and entities that may be participants in land legal relations.

International private law

International private law- a set of rules of law governing civil, family, marriage and labor relations of an international nature. The subject of private international law are relations that in the Russian Federation are regulated by the norms of civil, family and labor law, complicated by a foreign element, i.e. those that are international in nature.
It is worth noting that the peculiarity of legal relations in private international law will be that they involve foreign citizens and foreign legal entities, their object will be a thing located abroad, they are associated with the territory of two or more states, Private International Law - ϶ᴛᴏ, such Thus, a specific industry national law.

Legal system- this is the internal structure of law (structure, organization), which develops in an objective way as a reflection of actually existing and developing social relations.

It includes five main components: rules of law, legal institutions, branches of law, sub-institutions and sub-sectors.

Branch of law is the largest element in the legal system. It is formed by a set of legal norms that regulate a qualitatively homogeneous group of social relations by the uniqueness of the subject and method of legal regulation.

Law Institute is a separate group of legal norms regulating qualitatively homogeneous social relations within one branch of law.

Several legal institutions similar in nature of regulation form sub-branch of law. For example, civil law includes copyright, housing, and patent law; financial law includes a sub-branch of tax law.

Subject of legal regulation It is generally accepted to consider social relations regulated by a given set of rules of law. Each industry has its own subject of regulation, the specifics of regulated social relations. Not all social relations can be the subject of legal regulation.

Method of legal regulation- this is the method of influence of law on social relations determined by the subject.

Methods of legal regulation are characterized by three circumstances: a) the procedure for establishing the subjective rights and obligations of subjects of social relations; b) means of ensuring them (sanctions); c) the degree of independence (discretion) of the subjects’ actions.

In accordance with these criteria, legal science distinguishes two main methods of legal regulation: imperative and dispositive.

Imperative method(it is also called authoritarian, imperious) is based on subordination, subordination of participants in social relations. This method strictly regulates the behavior (actions) of subjects; they, as a rule, are placed in an unequal position, for example, a citizen and an administrative body. This method is typical for criminal, administrative, and tax law.

Dispositive method (autonomous), by establishing the rights and obligations of subjects, it provides them with the opportunity to choose a behavior option or, in addition, regulate their relationships by agreement. This method is inherent in civil, family, and labor law.

Private right - it is an ordered set of legal norms that protect and regulate the relations of private individuals.

Public law form norms that establish the procedure for the activities of public authorities and management.

33. Branch of law: concept and types. Grounds for dividing the legal system into branches.

Branch of law- an element of the legal system, which is a set of legal norms governing a qualitatively homogeneous group of social relations. The industry is characterized by the uniqueness of the subject and method of legal regulation.

Constitutional law;
- civil law;
- administrative law;
- criminal law;
- labor law;
- family law;
- land law;
- agricultural law;
- financial right;
- criminal-executive law;
- civil procedural law;
- criminal procedural law.

The division of law into branches is based on the subject and method of legal regulation. Under subject of legal regulation is understood as a set of social relations that require legal influence. Each branch of law regulates its own special area (sphere) of social relations of a single-order nature (homogeneous), the originality of which makes it possible to distinguish one branch of law from another. The second criterion for delimiting one branch of law from another is the method of legal regulation. If the subject acts as a material criterion for delimiting branches of law, then the method (formal legal criterion) helps to understand how (in what way) legal regulation is carried out.

The method of legal regulation refers to the methods of legal influence of the branch of law on social relations determined by the subject of regulation.

The method of legal regulation is implemented in certain social relations using such methods of legal regulation as permission, prohibition and obligation:

– permission– granting a person the right to perform certain other actions not prohibited by law;

– obligation– imposing on the subject the obligation of certain behavior, performing certain actions;

– prohibition– imposing on the subject the obligation to refrain from certain behavior, from performing certain actions.