Melnichenko R. G. Forming of the verified right as the independent legal institute / Translated by Potapova Julia
Designation of legal institute and discipline, which studies the legal profession and legal activity. The sphere of social relations and the group of their regulated rules of law, connected with the activity of attorneys, has already long ago been the object of the study of juridical science. However, today there is no single-valued answer about the precise composition, yes even about the very name of this group of juridicial relationships. Let us try to be determined in the designation of this legal phenomenon, and also in the designation of science and training course, its studying.
In the juridical science a question about the very designation of this legal institute and course is located in the stage of consideration. Most common is the name of "legal profession", which corresponds to curriculum. This approach is not entirely correct. Legal profession itself is the organizational form, because of and within the framework by which is achieved legal activity, and therefore to name discipline on the name of organ is somewhat questionable.
In connection with to other disciplines was formed the following practice: the name of training course, as a rule, duplicates up the name of branch or subbranch of right, which he studies, for example: "Constitutional law" , "Criminal law" , "Civil law" and the like it is possible to go along this way, and to name the course of "Legal law". However, this name will be not entirely accurate - occurs the mixing of the concepts of right in the objective and subjective senses. Can be formed impression, that "Legal law" are studied exclusively the rights of attorneys, but this far from so - verified right studies the right of attorneys precisely in the context of realization by them their functions.
Some authors propose to name the course of "Legal activities". Actually, the right fixed within the rules of law to the attorney must pass the specific stage - juridical practice. In this case this practice will be expressed in the legal activity. Legal activity - this is the variety of the social activity, achieved apropos of assignment to professional juridical aid.
We assume that this legal institute and his studying discipline should be called "Verified law". Cultural and historical connection with the activity of attorneys in Russia first, here is outlined. As is known, in the period of the bloom of the legal profession in tsarist Russia the attorneys were called by jurors verified. The special physical - ethical connection of attorney and his client in the second place, is the basic principle of the construction of the legal profession. Attorney - this is that person, to which the client believes and entrusts. Thirdly, the basic source of law, which regulates the activity of attorneys, bears name law RF of "On the legal activity and the legal profession in the Russia". If we name legal institute and discipline of "Legal activities", this there will be the unjustified decrease of the volume of concept. Specifically, the term of "verified law" it can combine in itself both the objects indicated.
As scientific discipline the verified right includes several divisions. The questions, dedicated to exceptionally legal activity and not studied by other juridical disciplines, enter into the main division. This division includes: object, function, sources and the history of the verified right. Here are examined the subjects of the verified right, juridical status of attorney, principles and organization of legal activity. The financial aspects of the activity of the attorneys are separated in the separate division: the conclusion of legal agreement, payment by the state of legal services, the taxation of legal activity. Sufficiently considerable attention in the science the verified right returns legal criminology. This division studies separate methods and strategies, used by attorneys in the course of the realization of its professional activity in different processes: constitutional, criminal, civil and the like a sufficient young direction in the science of the verified right - marketing aspects of legal activity. This division of science will help both the beginning and experienced attorneys to make their activity of more financial attractive. Being guided by comparative jurisprudence, science the verified right studies questions of the legal position of the attorneys of foreign countries.
The main engine of the development of science the verified right are scientists in this region. The practicing attorneys, who successfully appeared themselves in this sphere, are traditionally them. As an example it is possible to lead the name Of Barshchevskogo M.Yu. - specialist in the region of legal ethics, BurobinaV. N. with the association of its legal firm of "Yustina", actively occupied by social activity Kucherenu a. g., attorney of Rostova D Smolensk M. b. and many other worthy representatives of legal profession in the science. Questions of the legal profession became actively to be occupied the representatives of other juridical disciplines. Questions of legal representation and attorney- defender are examined by specialists civilly and criminal procedure right. The representatives of civil science develop debatable questions of agreement to the rendering of juridical services. The dynamics of the development of this science speaks about the large potential for the young researchers in this region.
Object of the verified right. It is more precise, the verified right can be defined as interbranch institute for comprehensive studies. As is known, interbranch institutes appear at the joint of different branches of the rights, the object of regulation of which possesses known generality. Thus, the rules of verified law can be found in the sources of civil- processual, arbitration- processual, criminal procedure and other processual branches of right. Most verified right includes the material and processual standards, which relate not to one branch of right (concept and the procedure of obtaining status of attorney, the organizational form of the legal profession the like). The verified right as legal interbranch institute for comprehensive studies is the totality of the rules of law, which regulate or which serve as base for the appearance of relations in the sphere of legal activity.
The object of the verified right are the juridicial relationships, which appear apropos the realization of constitutional right to obtaining of qualified legal assistance.
The verified right as interbranch institute for comprehensive studies is directed toward regulating of two objects: legal activity and the legal profession. Let us dismantle alternately both these objects.
Legal activity - this is qualified legal assistance, given on the professional basis to constituents for purposes of the protection of their rights, freedoms and interests, and also guarantee of access to the justice.
Legal activity - this is rendering by the attorney of any juridical aid, not forbidden by legislation. Law provided the open enumeration of competences, which can achieve attorney in the course of its legal activity. Authorities can be distributed to the following groups: juridical consultation, the composition of the documents of legal nature, legal representation, business is the legal profession. The legal profession is the following object of the legal regulation of the verified right.
Under the term of "legal profession" the voluntary achieving self-determination itself organization of attorneys is understood. Problem consists in a certain uncertainty of the position of the legal profession in the social system. Thus, being found on the complete self-financing, the legal profession is not at the same time commercial organization. From the other side, achieving some state functions (protection of face during its attraction to the criminal responsibility), the legal profession is not public organ. However, to carry the legal profession to the public organizations entirely does not allow the professional directivity of its activity. Today the legal profession is related to professional association and institute of civic community, not entering the system of the organs of power of the state and organs of local self-guidance.
The verified right - this is the totality of the rules of law, which regulate the procedure of assignment to face of qualified legal assistance, and those also of determining the order of forming and the structure of the legal profession.
Purposes and the function of legal activity. The purpose of legal activity is the creation of conditions for the realization of constitutional right to the qualified legal assistance. Most verified legislation sets several possible purposes, which are subject to reaching in the course of the legal activity:
the protection of rights and freedoms and interests of constituents;
the guarantee of access of the latter to the justice (h. of 1 st. of 1 law RF of " On the legal activity and the legal profession in the Russia».
As we see, the second purpose is additional and escapes from the first. The need for its isolation consists in the fact that on the basis of the level of the development in modern Russia of jurisprudence generally and the court trial in particular in the case of absence in one of the sides of the qualified juridical assistant in it is small chances to the favorable outcome of its matter.
Functions of legal activity. In the course of the accomplishment of purposes and tasks legal activity is aimed at reaching of its functions. The functions of legal activity - this that, for which it strictly and is achieved. This is its social value. It is necessary to isolate several functions of the legal activity: preventive, reducing, guardian, that disciplines, sanitary.
Preventive function consists in warning of the entry of legal persons into such state, when the threat of the offensive of legally unfavorable consequences appears for it. Subjects, being turned to the attorney for the council, obtain the possibility to be commensurate their purposes and the ways of their reaching with the requirement of legislation.
Citizens turned themselves to the attorney with the problem of the failure of the tenants of their apartment to leave in connection with the nonpayment of lease pay. Client- leaseholders already themselves decided with the use of force to free the accomodation belonging to them. They were assured that this them right. Attorney, explaining, that these actions of leaseholders can entail for them juridical responsibility and, explaining the legal way of the permission of conflict situation, prevents the accomplishment of possible offense.
Reducing function consists in the restoration of the disrupted rights of clients and appears, in our opinion, together with the guardian function, which prevails. The rights of citizens can be disrupted in the spheres of influence of criminal, civil, administrative and other branches of right. Attorney, achieving consultation and his other authorities, attains the restoration of the disrupted rights of his clients.
Guardian function consists in the protection of its clients, above rights of whom is overhanging the threat of their depreciation or disturbance. When attorney composes initiation petition, he achieves a reducing function, since he attempts to protect the already disrupted rights of his client. When attorney composes opinion to the initiation petition or participates in the judicial session on the side of responder, he achieves a guardian function, since he attempts to fence its client from the possible disturbance of his rights.
Disciplining function. This function is additional and consists in the imposition on the person, who disrupted right, the burden of the compensation of expenditures for the services of attorney.
In the judicial session in the civil matter on the side of responder the attorney can participate. Very threat of placing on responder, in the case of the loss of the matter, expenditures of plaintiff, carried by him for the services of attorney, will make it necessary responder to think about possible peaceful resolution of conflict.
For example, from the sandals on the second day of carrying acquired in the store is shabby entire paint. To salesman, in the case of the transfer of the matter to the law court, threatens, besides the placing to it of the responsibility to return money for the poor quality goods in the size of 500 rubles and to pay off legal forfeit, approximately into the same sum, the compensation of expenditures for the payment of the services of attorney, which can exceed the sure losses.
The same function acts also with respect to unconscientious plaintiff. If plaintiff understands, that the action is not substantiated, then it before the initiation of the process several times will think, to go to it in the big enough expenditures on the payment of the services of attorney, which, will be most likely, irretrievable. This disciplines plaintiff and prevents lashing vessels by the deliberately unjustified actions.
Generally, in the court trial the disciplining function it must fulfill the institute of the state duty. However, in practice is added such situation, when for "large actions" well-off debaters the size of gosposhliny is not essential, at the same time for the indigent citizens this size is considerably reduced by vessels themselves.
The disciplining function acts also in the case of the attraction of face to the criminal responsibility. Very cost of the services of attorney, and in certain cases it is significant, appears as the unique penalty for the law-breaker.
Sanitary function. In the countries with the developed legal activity is established the situation, when attorneys themselves discover corporations or those, who disrupt rules of law. Then, accomplishing a supply of action from the side of their client, they not only restore his rights and obtain fee, but also uses rule of law, which thus far was disrupted. Generally, the authorized organs must be occupied specially by directly law-enforcement activity to that. As a rule, procuratorship comes out as them. However, in connection with known deficiencies in the work civil agent (absence of personal interest) the majority of rules of law remain "sleeping". And now and then only the legal profession with its mobility and by interest attempts in its activity of the standards in the interests of its clients indicated. Thus, in some countries attorneys are basic subjects on the realization of law-enforcement function.
The function indicated, although he is additional, plays special role in the functioning of legal system. Even in ancient Rome it was considered that right it cannot exist otherwise as with the presence of the persons competent in the right, by means of whom it could daily be pushed to the perfection.
Purpose of discipline, which studies the legal profession and legal activity. The usefulness of any discipline depends on those purposes, which are reached in the course of its study. The following purposes of the study of present discipline are separated: consumer, familiarizing, methodological, training specialists in the region of legal activity.
Consumer. Any person in his life can encounter as the client with the attorneys and their activity. In order to effectively use the legal profession as tool in reaching of its interests, and also, for the purpose of avoiding possible misunderstandings and troubles with the hire of attorney should be studied discipline indicated. In this connection to the potential clients of attorney it is useful to know the financial aspects of their activity, the ethical rules of interaction of attorney and client, possibility of action on the unconscientious attorneys.
For example, some citizens sincerely consider that the juridical consultation must not be paid because of its insignificance. Attorneys frequently hear in their offices from the clients the following phrase: "To us only ask". The knowledge of the elementary financial bases of the activity of attorney, will help to avoid similar errors.
Familiarizing. To the majority of the practicing jurists necessary to know legal activity in connection with the fact that attorneys appear most "danger" by processual enemies. After studying their weak and strong sides, it is possible to more successfully resist them in the course of its juridical activity. In this connection the knowledge of present discipline they will especially prove useful to prosecutor workers, inspectors, legal advisers.
Methodological. Activity of attorneys can be attributed to the extreme jurisprudence. In the course of their work the attorneys manufacture special approaches and methods of the behavior, which make possible for them successfully to compete on the market for juridical services. The study of these approaches and methods will be useful to any practicing jurist.
Training specialists for the profession of attorney. An increase in the market for legal services, as a result, entails an increase in the requirements for the presence of special professional knowledge in the representatives of this profession. In connection with this appeared the need for obtaining by candidates to the profession of "lawyers" special knowledge on the selected juridical activity. It is necessary to note that for the entrance into the corporation of attorneys it is necessary to return the special examinations, where together with questions is checked the presence of the special juridical knowledge, necessary precisely for attorney in its activity.
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