宪法:构成国家法律体系骨架的法律领域或特定的基本子系统

M. Koziubra
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引用次数: 1

摘要

本文批判性地分析了一种将宪法解释为国内法领域和公法子系统的方法,这种方法在后苏联和国家宪法学术中仍然流行。作者论证了后苏联时期传统的法律划分标准在方法上的不足之处。法律规制主体(由若干法律规范规范的同质社会关系)的可得性,以及法律规制方法作为一种工具,对每一法律部门所规范的社会关系产生影响。它高度超越了以往作为宪法主体的国家治理同质关系的法律规制边界。它所适用的方法范围比建立在权力从属关系基础上的传统公法强制方法要广泛得多。因此,除了上述方法之外,宪法还经常采用基于协调主体之间关系平等而不是从属关系的处置方法。此外,宪法并不局限于国家的国内法的范围。它的某些条款具有超国家地位,具有宪法与国际法的联系。本文的结论是,基于宪法的本体论性质,宪法所占据的范围比传统上对它的认识和区分更为广泛。它为所有最重要的社会关系领域的运作和发展确立了基本的基本原则,这些领域主要与个人的法律地位和国家在保障法律地位方面的作用有关。宪法是国家法律体系的一个具体的基本子系统,是国家法律体系各分支的根本依据,是整个国家法律体系的制度建设支点。文章收于13.03.2019
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Constitutional law: the field of law or a specific basic subsystem being a skeleton of national system of law
The article critically analyzes an approach to the interpretation of Constitutional Law as the field of national law and a subsystem of public law still popular in post-Soviet and national Constitutional scholarship. The author provides arguments on methodological inadequacy of traditional post-Soviet legal criteria of the division of law into branches and institutes. The availability of the subject of legal regulation (homogenic societal relations regulated by a number of legal norms) and the method of legal regulation being an instrument of the influence on societal relations being regulated by those, in each branch of law. It highly exceeds the borders of legal regulation of state governance homogenic relations being the subject of Constitutional law in the past. The scope of methods applied by it is much wider than the traditional public law imperative method built on the relations of power subordination.  Therefore, in addition to the abovementioned method, Constitutional law frequently applies the dispositive method based on the equality of relations between the coordinated subjects on the contrary to subordination. Moreover, Constitutional law does not limit itself to the scope of national, internal law of the country. Its certain provisions have a supranational status bearing the ties of Constitutional law with International law. The article concludes that basing on its ontological nature, Constitutional law occupies a wider scope than it has traditionally been viewed and differentiated.  It establishes basic, starting principles for the functioning and development of all the most important areas of societal relations linked primarily to the basics of legal status of the individual and the role of the state in its assurance. Constitutional law makes a specific basic subsystem of the national legal system and provides a fundamental basis for all of its branches as well as acts as a system-building pivot for the whole national legal system. Article received 13.03.2019
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