LECTURE 2. GENERAL POSITION OF LAW

LECTURE 2. GENERAL POSITION OF LAW

(BASES OF THE THEORY OF LAW)

PLAN

Notion, attributes, functions, sources and system of law. Notion and structure of legal rules.

Notion, attributes and structure of legal relations.

Notion and types of legal conduct. Notion and types of legitimate conduct.

Notion, attributes, composition and types of offences.

Notion, aim, functions, grounds (reasons) and types of legal responsibility.

1.

Law is a special type of social norms (rules), a system of obligatory, formally fixed rules of behavior, which are created, guaranteed by a state with the aim to put in order public relations.

An objective law is a system of all legal rules (norms), which operate in the state.

A subjective law is a possible behavior of a person.

Attributes of law:

- a system;

- an obligatory character of law;

- formally fixed;

- a normativeness;

- a volitional character of law;

- created, provided and guaranteed by the state.

Functions of law are the basic directions of influence of law on public relations and behavior of people, social development.

There are general socialandspecial legalfunctions of law.

General social functions are:

1. Humanistic is protection of mankind.

2. Organizational is the organization of common efforts of people to achieve socially useful aims.

3. Educational is a feature of development of legal understanding among people.

4. Informative (communicative) means to inform the people about the will of the legislator.

5. Evaluational is a criterion of legality or illegality of certain decisions and actions.

6. Gnosiological (cognitive) means that law is a source of cognition of the development of society.

Special legal functions are:

1. Regulative means that law is a regulator of legal relations and conduct of people by the legal rules.

2. Protectivemeans thatlaw protects the rights and freedoms of people.

Basic sources of law are:

1. A legal custom is the rule of behavior, which is sanctioned by the state, which established in society as a simple custom as a result of frequent reiteration during great while and which became a tradition.

2. A legal precedent is a judicial or administrative decision from concrete legal case, it is obligatory for all next analogical cases. These analogical cases must be explained the same way as the legal precedent.

3. A normative agreement is a written document, which contains the rules of behavior, which has general character, which is created by mutual consent of a few subjects and guaranteed by the state.

4. A legal document (a legal act)is a written document of the competent bodies of the state power, in which the rules of behavior are fixed.

In Ukraine a legal document (a legal act) is the basic source of law.

A system of law is the internal formation of law, which consists of fields of law, institutes of law and legal rules (norms) of law.

A field of law is the system of legal norms, which create an independent part of the system of law and regulate the separate sphere of public relations. The field of law is the largest element of the system of law. Every field of law has an object and a method of the legal regulation.

There are such fields of law in Ukraine: criminal, financial, administrative, constitutional, civil, family, economic, labour etc.

An institute of lawis the group of legal rules, which is the element of the system of law of the concrete field of law. These rules regulate the most homogeneous relations.

For example, there is an institute of civil responsibility in civil law, and there is an institute of citizenship in constitutional law.

A legal rule (a norm of law)is the official, formally fixed, obligatory rule of behavior. The state creates legal rules and guards them from violations for regulation of the most important public relations.

The legal rulehas a structure and consists of a hypothesis, a disposition and a sanction.

A hypothesis is the part of the legal rule, which is expressed in the circumstances and conditions under which legal rights and obligations can be implemented.

A disposition is the part of the legal rule, in which the normal way of behavior (the right or the obligation) is reflected.

A sanctionis the part of the legal rule, which determinates legal responsibility for an offence.

2.

Legal relationsarepublic relations, which are regulated by the law, their participants have subjective rights and legal duties, which are guaranteed by the state.

Basic attributes of the legal relations are:

1) arise up on the basis of legal rules;

2) have sides (parties), which have subjective rights and legal duties;

3) is the type of public relations of a natural person or a legal person, organizations and communities;

4) state controls and guaranteed realization of subjective rights and observance of legal duties in legal relations.

There are three elements of the structure of legal relations:

1) a subject;

2) an object;

A content of legal relations.

Subjects of legal relations are participants, which have subjective rights and legal duties.

It is possible to devide them into:

1) a natural person and a legal person;

2) astate and public organizations;

3)different communities (labour collective, nation, people etc);

4)civil society.

The subjects of legal relations must have legal personality. This is ability to have rights and duties, carry out them and to be the subject of legal responsibility for offences.

Legal personalityconsists of legal capacity and legal capability.

Legal capacity is ability of a subject to have subjective rights and legal duties. It arises up from the moment of birth and ceases in case of death of a subject.

Legal capabilityis ability of subjects to acquire and carry out subjective rights and legal duties by the actions of subjects of legal relations.

There are such kinds of civil capability:

- partial legal capability of a natural person who is under 14 years old;

- incomplete legal capability of a natural person of age from 14 to 18 years;

- full civil capability of a natural person of age from 18 years.

Limited capability is limitation of rights and freedoms of a person in a decision of a court as a result of abuse of alcohol or drugs.

Absolute incompetence is set for the person, who is incompetent in a decision of a court as a result of mental affection or imbecility.

Parents, guardians or trustees have juridical responsibility for children and mentally sick. They are legal representatives.

Objects of legal relations are the social things, which satisfy interests and necessities of people. They are divided into material, spiritual welfares, actions of subjects of legal relations, result of their activity.

A content of legal relations is characterized by a combination of actual and legal.

A legalcontent is subjective rights and legal duties of subjects of legal relations, it is possibility of certain actions of the authorized subjects and necessity of corresponding actions of the obliged subjects.

An actualcontent is behavior of subjects, their activity, subjective rights and legal duties of sides (parties), which are realized by them.

The moment of the origin, the change and the end (stop) of legal relations is connected with legal facts. Legal facts are the grounds of these.

Legal facts are the concrete vital circumstances, which were foreseen by the law.

It is possible to divided them into:

- juridical events;

- juridical acts.

Juridical events are circumstances (phenomena) the origin of which do not depend on a will of a person. There will be legal consequences after these events, legal relations can origin, change or stop (for example, earthquake, illness, death).

Juridical acts are circumstances the origin of which depend on a will of a person (for example, conclusion of treaty, an offence).

LECTURE 2. GENERAL POSITION OF LAW

(BASES OF THE THEORY OF LAW)

PLAN