Herald of Omsk University. Series: Law最新文献

{"title":"Historiography of the History of Law and the State of Russia: \u0000Pre-Revolutionary and Soviet Periods","authors":"M. Kozhevina, T. F. Yashchuk","doi":"10.24147/1990-5173.2020.17(4).5-15","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(4).5-15","url":null,"abstract":"Introduction. The historiographic experience of studying the history of law and the state of Russia was not the subject of independent scientific analysis. Certain aspects were touched upon in the prefaces to the reprints of classical scientific works, publications of a biographical nature, in the literature reviews preceding the main part of the works. In modern humanities, there is an increasing interest in the scientific problems of the genesis and evolution of individual disciplines. The history of law and the state of Russia is a part of legal and historical knowledge and requires substantive consideration. Purpose. The goal is to determine the main conceptual approaches that have formed and developed within the framework of historical and legal science during the pre-revolutionary and Soviet periods. Methodology. The methodology is represented by a number of methods. The chronological method and the method of periodization were used to build the sequence of the historiographic process. The historical-comparative method in the diachronic version made it possible to compare the content of the pre-revolutionary and Soviet periods in the historiography of the issue, to reveal the features of each period. The institutional method showed the process of delimiting the history of law and the state of Russia from other scientific disciplines. The method of hermeneutics was necessary for the textual analysis of works of legal and historical content. Results. The process of institutionalization of the history of law and state of Russia is shown. As a result, this led to the emergence of its own historiography within its framework. The main research directions are systematized; the factors that influenced the development of historical and legal science in the pre-revolutionary and Soviet periods are identified; a circle of scholars dealing with historical and legal problems has been established; the most significant publications are indicated. Conclusion. Two periods of the historiography of the history of law and the state of Russia are highlighted and characterized. The basis for the study of the next modern period is being created.","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"33 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123619012","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"ON SOCIAL VALUE: INFLUENCE OF THE ROMAN RIGHT \u0000ON RUSSIAN CONSTITUTIONALISM","authors":"S. Baburin","doi":"10.24147/1990-5173.2020.17(1).5-14","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(1).5-14","url":null,"abstract":"Introduction. The article raises the problem of the influence of Roman law on Russian constitutionalism and the formation of social values based on this influence of the modern legal culture of Russia. Purpose. The author aims to assess the impact of Roman law on Russian constitutionalism and its social value. Methodology. Methods of analysis and synthesis, dialectical logic, comparative-historical and formal-legal are used. Results. The thesis is argued that the ideas and approaches of Roman law retain social value, but their application is fruitful only in harmony with the spiritual and moral foundations of the corresponding legal culture. The absolute belief in the law as a phenomenon of social planning and a tool for compromise between different parts of society, inherited from Roman law, formed the Romano-German and Anglo-Saxon worldview, but does not take root in Russian legal culture. Modern Russian constitutionalism, following the tradition of Roman law, is based on norms-principles, norms-goals and norms-symbols that perform the social function of the highest legal indicator and play an important predictive role. But misconceptions about the universalism of Roman law lead to civilizational breakdowns of peoples. In Russian constitutionalism, breaks occurred during the constitutional reforms of 1906, 1936, and 1993, which created social deformations and created legal and political preconditions for the destruction of the nation. Thus, the Constitution of the USSR 1936, first by copying the current European bourgeois electoral system, abandoned the system of multi-level congresses of Soviets, more respondents Roman and Russian traditions Council and people's Assembly. Among the important results of the study is the conclusion that the social value of Roman law in Russian constitutionalism covers the moral mission of Roman law and a high assessment of the normative value of the heritage of Roman law. Conclusion. The author concludes that Roman law has a social value for States with a traditionally communal identity as a source of effective legal structures and a model for studying; that Russian constitutionalism, which three times, in 1906, 1936 and 1993, departed from its cultural and historical traditions of organizing state management of society, again tries to build modern political and legal institutions on the basis of Roman legal dogma, while Russian legal culture excludes law from the field of sacred law. The social value of Roman law in the modern era lies in the fact that without a well-thought-out and coordinated support by the entire world community on its public-legal and private-law traditions and institutions, the evolutionary transition of mankind to the sustainable development of society is impossible.","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131216748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CASSATION PROCEEDINGS UNDER THE DRAFT STATUTE OF CIVIL PROCEDURE OF 1863","authors":"A. Kovalchuk","doi":"10.24147/1990-5173.2020.17(1).94-99","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(1).94-99","url":null,"abstract":"Introduction. The creation of a system of cassation courts of general jurisdiction organized on an extraterritorial basis and other significant changes in modern cassation proceedings quite obviously mediate a new wave of scientific interest in the history of the development of a system for verifying judicial acts in the domestic tradition of civil procedure. In this regard, the experience in carrying out the Judicial Reform of 1864, in particular, enforcement of the Statute of Civil Procedure regularized the cassation institution for the first time, became relevant. At the same time, despite the fact that many modern scientific works are devoted to the study of the Statute of Civil Procedure of 1864 itself (including possibilities for appealing court decisions provided for thereby), the studies of foregoing drafts also stay relevant. The draft of 1863 is one such example. This article is devoted to the analysis of this draft in accordance with the declared topic. Purpose. The purpose of this study is to describe the draft Statute of Civil Procedure of 1863 in the context of its provisions defining the content of cassation institution. Methods. In the framework of the study, mainly historical-legal and comparative-legal methods were used. Results. The significance of the draft Statute of Civil Procedure of 1863, in the context of establishment and development of cassation institution in the civil procedure of the Russian Empire, was manifested, first of all, in a sufficiently clear consolidation in it of the very grounds for cassation of decisions. Its definitions are very similar to its provisions have been already consolidated in the Statute of Civil Procedure of 1864. At the same time, existing in that period distinction between terms “cassation” and “revision” promoted the consolidation of two basic tasks of cassation proceedings in the provisions of the Statute of Civil Procedure of 1863: verifying of the final decisions for judicial errors with the purpose of their subsequent elimination and ensuring uniform application and interpretation of the law. Conclusion. The draft Statute of Civil Procedure of 1863, having incorporated the ideas of many subsequent legislative works into itself, became some sort of provisional result of development of the necessity of cassation court in the Russian Empire of the 1800s – 1860s. At the same time, of course, the work on drafting the Statute of Civil Procedure did not end there, wherefore the draft was actively discussed and improved, and its main provisions regarding the regulation of the cassation proceedings formed the basis of the Statute of November 20, 1864.","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127148339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"REVIEW OF THE MONOGRAPH BY V.A. GUSEV, V.F. LUGOVIK \u0000“THEORY OF OPERATIONAL SEARCH PROCEDURES”","authors":"V. Azarov, D. Nurbayev","doi":"10.24147/1990-5173.2020.17(1).130-134","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(1).130-134","url":null,"abstract":"Introduction. The peer-reviewed monograph is devoted to the theory of operational search procedures. The needs of practice in the system of legal regulation of procedural and procedural issues of operational and investigative activities are not adequately reflected, which leads to the lack of an adequate theoretical basis that could become the foundation of future legislative changes. The presence of a complex set of unresolved problems arising in the adoption and implementation of decisions by officials of the bodies carrying out the operative-investigative activity and their implementation of operational and investigative actions form an urgent need to create an effective system of legal procedures in the operative-investigative activity. The authors analyzed the main sections of the work, gave a brief description of them, as well as highlighted the most interesting and informative provisions that reflect the actual issues of operational search activities. In addition, wishes were expressed to the authors of the monograph. Scientists have studied such issues as: theoretical-methodological bases of legal procedures in the operational-search activities; legal procedures in order to ensure the rights and freedoms of man and citizen when implementing operational search activities; the legal procedures for operational-investigative activities; legal procedures for realization of rights of the bodies implementing operative investigative activities; legal procedures for investigation of production; legal procedures for the use of operative-investigative activity results in criminal, arbitration proceedings, the powers of tax authorities, when making administrative and managerial decisions; legal procedures for the implementation of prosecutorial supervision over execution of laws in the operational-search activity. Conclusion. The reviewed work, of course, is a new, and very informative page in the theory of domestic jurisprudence, and the proposal for the introduction of the Operational-investigative code is extremely relevant, it requires support and early practical implementation.","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133589396","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"LEGAL DEFINITION IN THE CONTEXT OF THE PROTECTION OF HUMAN CONSTITUTIONAL RIGHTS","authors":"E. Balayan","doi":"10.24147/1990-5173.2020.17(1).59-68","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(1).59-68","url":null,"abstract":"Introduction. In modern legal science, the category of “legal certainty” is understood and interpreted in different ways. Opinions and approaches of scientists differ in designating the type, nature, elements, regulatory burden and the full content of the idea of legal certainty. The significance of the principle of legal certainty in the context of the protection of human rights cannot be considered without taking into account the influence of Roman law on it. The idea of establishing the rule of law for the “expulsion of all injustice” and contradictions is relevant in modern law. Without a broad interpretation of the principle of res judicata, human rights violations cannot be avoided. Purpose. The purpose of the research is to analyze the nature, content of the normative burden of the category “legal certainty”, various theories and approaches to determining its place in the doctrine of constitutional law, in general, in the context of protecting human rights and freedoms, in particular. Methodology. The methodological basis of the study is scientifically developed and applied in practice, the main scientific methods, such as the dialectical method of cognition, which allows you to analyze all phenomena and processes in their development, the relationship and interdependence, as well as general scientific and private scientific methods, analysis, specific historical, logical historical, systemic, comparative legal and other methods. The theoretical basis of the study is the work of domestic and foreign experts of constitutional law, the theory of state and law, international law, as well as other areas of legal science. The material of a scientific article is based on the study of various scientific sources: monographs, dissertations, scientific articles, materials of scientific and practical conferences, etc. Results. The category of “legal certainty” in the doctrine is considered in different contexts. The unity of opinion in the legal doctrine exists solely to indicate the important role and significant place of the principle of legal certainty in law-making and law enforcement activities of the state. The normative burden of legal certainty is interpreted more meaningfully, since it covers not only the elements of the supposed stability and clarity of the current legal regulation or the essence of the principle of res judicata, but also the consistency, clarity of the entire system of law, the constancy of law enforcement, the practice of the activities of the judiciary, the integrity and compliance of prescriptions law and legal culture and consciousness of all subjects of legal relations to these requirements. Conclusion. To avoid violations of the constitutional rights and freedoms of man and citizen, as well as non-compliance with the constitutional guarantees of their state, including judicial, defense, to ensure the most harmonious state of legal stability of the individual, society and the rule of law is possible only with the appl","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133558256","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"PREVENTION OF OFFENCES: HISTORICAL ESSAY","authors":"M. Kleymenov, A. Kondrat’ev, Ekaterina Sabol","doi":"10.24147/1990-5173.2020.17(1).108-119","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(1).108-119","url":null,"abstract":"Introduction. It is an axiom that crime prevention should be the main focus of the fight against crime. Its ideological basis was laid by the ancient Greek philosophers Socrates, Platon and Aristotle, who persistently asserted the idea of justice as the fundamental philosophical basis of a reasonable – “good” – state. Purpose. The goal is to analyze the development of the doctrine of crime prevention in the historical context and its practical implementation. Methodology. The authors used a comparative historical method, that allows you to identify the stages and patterns in the development of the theory of crime prevention, as well as in the policy of crime prevention. Results. The foundations of the theory of crime prevention were formed by ancient Greek and Roman thinkers, whose creations were characterized by clarity of thought and the desire to learn the ontological foundations of the state and law. A notable contribution to the development of this theory was made by utopian socialists, classics of the Enlightenment and their followers. It was then that the main idea of prevention was formulated, that it is better to prevent crime than to punish, and that a good legislator will try not so much to punish as to improve morals. The most active theory of crime prevention developed in the USSR. In practical terms, the idea of crime prevention was first embodied in Ancient Rome – in the Laws of the XII century, which become public and thus acquire a preventive value. However, in a full-fledged embodiment, the foundations of criminological legislation are most clearly formed in Imperial Russia. A unique normative legal act in this regard should be recognized as the “Code on the prevention and suppression of crimes”, adopted in 1832, which contains a number of provisions that have a modern preventive sound. The apogee of preventive activities should be recognized as the experience of the internal Affairs bodies of the USSR in the 1960s-1970s. High efficiency of such activities was provided by a strong social policy, full support from the authorities at all levels, qualified implementation of criminological research, active participation of the population in crime prevention. In relation to crimes, the state and citizens have formed a solid position – we must fight crime together and this is our common task. Conclusion. In the modern truncated-recreated form, crime prevention imitates activities in this direction rather than being able to actually be the main direction of the fight against crime. This is due to at least three significant circumstances: 1) the loss of the importance of social policy as the basis for General crime prevention; 2) a catastrophic stratified gap in the population's income, which undermines the credibility of the government, its declarations and appeals; 3) changing the nature, properties and parameters of crime, which requires a conceptually new preventive response to it.","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131607690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"ABOUT THE HERMENEUTIC METHOD IN LAW","authors":"V. Kozhevnikov","doi":"10.24147/1990-5173.2020.17(1).15-26","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(1).15-26","url":null,"abstract":"Introduction. This scientific article is devoted to the consideration of the problem of using the hermeneutic method of cognition of legal phenomena in modern domestic jurisprudence. Purpose. The purpose of the article is to show the potential possibilities of the hermeneutic method in the field of law. To achieve this goal, the following tasks were set: 1) to substantiate the significance of the methodological foundations of jurisprudence; 2) to consider the issue of the concept of hermeneutics in a historical aspect (the views of Aristotle, V. Dilthey, F. Schleiermacher, F. Nietzsche, G.G. Gadamer, M. Weber and others; 3) to analyze the views of Russian scientists substantiating the need for the hermeneutic method in the study of legal phenomena (D.A. Kerimov, M.M. Rassolov, P.M. Rabinovich, V.A. Suslov, I.L. Chestnov); 4) show the weaknesses of the hermeneutic method in jurisprudence, the arguments of the opponents of this approach (V.M. Syrykh, I.Yu. Kozlikhina, V.N. Zhukov and others). Methodology. When writing this article, we used a complex of both special (philological, cybernetic, psychological and others) and private-scientific (formal-legal, interpretation of law and others) methods of studying legal reality. Results. The result of the study in the framework of this article was the following: without denying some fruitfulness of metaphysics, which is the basis of the analyzed method, we note that the hermeneutics method is practically not used in jurisprudence due to the lack of an appropriate methodology and is replaced by the historical way (method) of interpreting legal norms. Conclusion. In conclusion, it is summarized that even those scholars who pinned certain hopes on legal hermeneutics in the research plan have now begun to doubt its potential, believing that this approach to law as an independent has not yet taken place. Paying attention to the fact that the last decade is characterized by the search for a new paradigm, they are increasingly trying to find it outside the law, to attract to the study of law the knowledge developed in the bosom of other sciences, it is emphasized that such attempts should be welcomed, but only if they deepen our knowledge of law, and not of the subject of those sciences to which we turn.","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121079766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“ROMAN OWNERSHIP RIGHTS” AND OTHER LEGAL GROUNDS \u0000FOR SOCIAL STATE","authors":"A. Evstratov, I. Guchenkov","doi":"10.24147/1990-5173.2020.17(1).27-38","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(1).27-38","url":null,"abstract":"Introduction. The significance of the study lies in the consideration of issues related to the disclosure of the legal foundations of social statehood, the determination of the value of law and ownership as necessary elements of comprehensive human development, as well as the understanding of the limitations that the use of only substantive criteria for the implementation of the idea of a social state provides. Purpose. The aim of the article is to identify the need for the main principle of human community – the development of a free individual, when the person does not feel any total control by the state, or solitude in the market struggle, to be pursued. Methodology. Formal legal method, analysis, synthesis, formal logical method, systematic approach. Results. The common forms of relationships between individuals and society are considered. It is determined that the most promising ideal type of social relationships should be a mixed type, the prerequisite of which is the equivalent value of the individual and society (society and the state) that exist in different historical epochs. An important role is assigned to the law and ownership, it follows that who destroys the law and ownership, then destroys the personality as well. The order of the human community, based on property and laws governing that, is a system of dependence of those who have no property on those who have it. It is also pointed out that the possibility of acquiring property and thus making an inter-class transition is not the property and the transition itself, because it does not guarantee free development for everyone. Every individual must understand that his own freedom cannot occur without the freedom of other people, that while working on achieving this type of order, the individual works not only on society but on himself as well. Each person may demand the same rights for himself by giving others a possibility to manifest themselves through their ownership rights. Awareness of his individuality is the way to comprehension of the meaning of personal independence, while the awareness of other individuals as independent equals whom he needs for his own development is the way to interaction among people, a chance to make the life well-ordered. Conclusion. It is necessary to speak of the social state as a special ideal, which is based on the eternal harmony, not the struggle, of two opposite, but identical in their nature qualities of a man: a will for privacy, selfishness, striving for isolation, domination over their own kind, which could be found in society, and the public, universal, striving to preserve everything, which are expressed in the state. In both theory and legislation, it is necessary to reflect those interests, the reasonableness of which is historically predetermined, so that they, through the law, entered the consciousness of everyone, became our common interests. That is why we need an actual guarantee of free education in the broadest sense, as a spi","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115237808","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE EVOLUTION OF SURETYSHIP IN ROMAN AND RUSSIAN LAW OF OBLIGATIONS","authors":"E. Trezubov, E. Rusakova","doi":"10.24147/1990-5173.2020.17(1).82-93","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(1).82-93","url":null,"abstract":"Introduction. The authors analyzes the historical development of the suretyship in the law of Ancient Rome and Russia. It is generally accepted that traditional private law institutions, which are also means of securing obligations, penetrated into Russian law through double reception – after their development in German and French law. Meanwhile, the suretyship was not created by Roman lawyers from scratch, it replaced the barbaric ways of securing the interests of the creditor based on hostage, debt bondage and others. The same methods evolved in ancient Russian law into an independent institution of bail. Purpose. The purpose of this study is to generalize and systematize knowledge about the historical development of the institution of suretyship in Roman private law and Russian law. Despite a long evolution, in modern Russian law the suretyship loses its accessory features that have been formed for more than two millennia, and acquires signs of abstractness. In this regard, it is important to determine the constitutive features of the legal relationship of surety to identify the trajectory of the subsequent development of the institution of personal securing of obligations. Methodology. In carrying out this study, general scientific and private law methods were used, including the system-structural method, methods of functional and historical-legal analysis. Results. Personal security of civil obligations arose in the legal space from the artificial creation of a correal plurality on the side of the debtor, which quickly outlived itself in view of the impossibility of achieving the goal of security – the proper guaranteeing effect for the lender. With the development of private law in Rome, the evolution of the institution of suretyship is visible – from the verbal forms of confirmation of third party debt and sureties for it, implemented by citizens in the form of sponsio, to the late form of fideiussor’s financial responsibility, tending to the modern model of guarantee. Russian suretyship develops from the universal institute of bail, mentioned even in the sources of law of the princely period. The bail was applied in all kinds of, not only private law relations, and was used as a general basis for third party liability. With the complication of civil relations, bail also develops as a means of personal security of the obligation, and by the beginning of reception of Roman law, the Russian suretyship naturally reached similarities with personal security in the sources of this reception – German and French law of obligations. The Russian suretyship of the XIX century becomes an independent obligation, the parties to which are the creditor and the surety, while the surety is not a co-borrower in the secured obligation and does not fulfill the main obligation as an intercession, the right of claim from the creditor passes to it, and the guarantor's liability, presumed as subsidiary, is realized only in cash. The further development of Russian ","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"617 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116077463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"TO THE QUESTION OF THE CONCEPT OF CIVIL LEGAL CONTRACTUAL REGULATION","authors":"A. Alimgafarova","doi":"10.24147/1990-5173.2020.17(1).100-107","DOIUrl":"https://doi.org/10.24147/1990-5173.2020.17(1).100-107","url":null,"abstract":"Introduction. One of the most important trends in the development of law of obligations in the modern period is the expansion of the scope of self-regulation of contractual relations, the establishment of the presumption of the dispositiveness of civil law, the expansion of the principle of freedom of contract, which in turn has created the need for scientific research on the concept of civil law contractual regulation. Purpose. The purpose of this study is to identify the true nature of civil contractual regulation and to develop their own definition of the above term. Methodology. In carrying out this study, various general scientific and special methods of cognition were used. At the same time, the dialectic method, the system analysis method and the teleological approach became the key ones. Results. As a result of a consistent and systematic analysis of legal categories directly related to the study, we developed our own definition: civil legal contractual regulation is a type of civil legal regulation carried out by subjects of civil law through civil contracts concluded between them, and including both the rules of law included by the parties in the content of the contract, and the individual rules created by the parties (micronorms). Conclusion. The concept of civil legal contractual regulation has scientific and practical value, because it allows you to study the regulatory properties of the contract at the system-categorical level, to reveal the contract from the dynamic side as an effective means by which the parties themselves legally regulate property and other relations between themselves. The concept of «civil legal contractual regulation» developed in this study can be used to further develop the instrumental theory of law, and, in particular, for the subsequent study of the regulatory essence of the contract.","PeriodicalId":310093,"journal":{"name":"Herald of Omsk University. Series: Law","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128580100","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}