The concept of a conflict norm is interpreted as follows - this is a normalized factor, on the basis of which the law of a particular country is involved in a particular particular relationship, weighed down by a foreign component. This is a rather sophisticated term. And in order to better understand it, one should know its specifics, types and structure.
Features
Both the concept of the conflict norm and the structure of the conflict norm are characterized by certain specifics. They are as follows:
- There is no direct control over the rights and obligations of subjects of legal relations. It contains only the principle on the basis of which a suitable instrument (right) can be used.
- The specified control is possible only in combination with the standard to which the conflict concept refers.
Configuration
In the concept of a conflict norm, the structure of a conflict norm necessarily appears and has two links: volume and reference. The first focuses on the type of private relationship with a foreign component. The second - on legal actions that occur during the formation of a legal relationship and the choice of standards for use.
Here is a reference to the theory of law, where there is a classical configuration with three elements: hypothesis, disposition and sanction. But this is only a characteristic of a logical norm, which is formed through a careful study of current legislation. In practice, only two of these links work simultaneously. And then, one of them is a hypothesis. Thus, it acts in conjunction with either disposition or sanction.
It turns out that the concept of a conflict norm, the structure of a conflict norm with two components fully fit into legal standards. And the first is a hypothesis, and the second is a disposition.
And in order to consolidate the content of these components, it is necessary to know their effect in practice.
Law example
The Russian Civil Code contains article No. 1205. It contains a suitable clause (No. 1) for practical consideration of the indicated volume and binding. Its essence boils down to the fact that the rights to ownership of property, their implementation and protection are built according to the norms of the state, where it is concentrated.
This rule is the conflict norm. The scope here is the part regarding rights, their exercise and protection. A binding is the norm of the state in which a particular property is located.
International situation
The concept of the conflict norm, the structure of the conflict norm are displayed both in domestic legislation (an example of this is the sixth section of part 3 of the Civil Code) and in international treaty acts.
International counterparts have a similar configuration. These include paragraphs and sections in many well-known and existing acts, for example, the Convention on Legal Assistance in Cases of such Level as Civil, Criminal and Family. It was published in 1993. In its article, the 39th format of the transaction (volume) is interpreted based on the laws (binding) of the place of its implementation.
Varieties. General Theses
The concept, structure and types of conflict norms are distinguished on the basis of certain criteria:
- Binding Format
- The nature of control.
- Scope.
All these species have their own characteristics and specifics, as well as a division into separate categories. For example, item 1 has two branches, item 2 has four subspecies.
Binding Format
There are norms that work in one-sided and two-way directions. The first indicate the use of the law of the country within which the conflict criterion appears. Example: Clause 2, Article 1213 of the Civil Code states that the documents of the land and water bodies and other real estate concentrated in the Russian Federation also use the law of this country.
The latter reflect the aggregate principle on the basis of which the choice of norm takes place. This binding is also treated as an addition formula. In the Russian legislative industry, it is she who dominates.
Nature of control
The concepts and types of conflict norms in this spectrum can be:
- dispositive;
- imperative;
- alternative;
- cumulative.
Here, the concept, structure and classification of conflict norms are quite complex. Each of the presented subcategories deserves a separate consideration and has its own examples in the legislation and in practical application. And norms on the nature of regulation interpret the legal powers of the parties in certain agreements
Dispositive views
They fix the general criterion for choosing the right, allow the parties to refuse it and introduce another rule. The formal attribute of these species is associated with the presence of professional language concerning the parties. An example of a dispositive view is paragraph 1 of article No. 1210 of the Civil Code. According to it, the parties to the agreement in the process of concluding or in future transactions can choose between each other the right that characterizes their capabilities and status under this agreement.
Imperative types
This classification contains categorical guidelines affecting legal choice. They are rigidly fixed. And the parties cannot vary them at their discretion. These types include the norm of Art. 1214. He interprets that a legal entity is created with foreign participation under an agreement to which the law of the country where this creation is based on this act applies.
Permissions work in dispositive types, instructions in imperative ones.
Alternative category
These rules imply the presence of at least two bindings in order to control a certain legal relationship recorded in volume. The use of a specific binding occurs by decision of the relevant participant in the relationship or other person. An example is Art. 1221 Civil Code. This rule clarifies that if it is necessary to compensate for damage caused due to deficiencies in a product, work activity or service, the injured party may apply the law of the state, where:
- The seller, or the producer of the goods, or another person who has caused harm lives or works.
- The same as in paragraph 1, only in relation to the victim.
- Where the work is done, the service is provided or the products are purchased. In the alternative concept, structure and system of the conflict norm, there are certain connections, on the basis of the specifics of which two more subcategories are formed: simple and complicated. And then their characteristics and reflection in laws are presented.
Alternative subclasses
As already noted, they can be simple and complicated.
The first are characterized by equivalent bindings. As a rule, the union of “or” serves as a tool for their connection. They are reflected in Russian law in paragraph 1 of Art. 1221 Civil Code.
Secondly, there is a certain hierarchy of bindings. Moreover, they are all subordinate to each other. Be sure to form the main binding. She interprets the cumulative principle of legal choice for preemptive use.
There is an additional binding in this system. It is also referred to as subsidiary. She interprets one or more criteria in the choice of law. And they all work closely with the dominant principle. Such a binding is used when the basic rule, due to some circumstances, was not used or turned out to be inferior to the establishment of an objective and legal rule of law.
Often subsidiary species are subject to rigorous detail. Certain degrees are assigned to them: first, second, third, etc. Art. 1211 Civil Code. On its basis, the law is formed, which is required to be involved in the contract when the parties are not able to come to an agreement on their positions.
Cumulative species
They can use foreign law to control this relationship. Moreover, compliance with the criteria of its law does not recognize the legal invalidity of the relationship. And it doesn’t matter if the requirements of the foreign legal sphere to which this type of conflict factor refers are met.
Example: Clause 1, Article 1209. According to it, the format of the transaction must be subject to the legal standards of the territory in which it is concluded. However, the process carried out abroad is not recognized as genuine due to violation of the form and following the criteria of the Russian side (law).
Question on complexity and differences
The concept, features and structure of the conflict norm can be supplemented and improved. And their complication and modernization occur for one purpose - to eliminate the voids in the legal control of private relations, which are aggravated by the presence of a foreign component.
There are certain differences in the spectrum of action of these norms. Based on this, the following classifications are distinguished:
- Are common. Designate the law that applies to the essence of a certain relationship, emphasizing its status.
- Special Their main function is to fix the rule of law necessary to overcome additional difficulties. A variety of dilemmas can arise in the process of implementing relationships. These standards determine the format of the transaction and the business potential of both parties. An example is Art. 1196 of the Civil Code, declaring that the civil and legal ability of a citizen is determined by his personal law.
The concept, features and structure of conflict of law rules are determined by the possibility of choosing the appropriate substantive law for use. There is no direct control over the status and obligations of the parties.
A particularly clear interpretation is found in foreign legal textbooks. It says that law is realized on an international scale when the optimal system for this is chosen.
Action dilemmas
The use of the concept of conflict of norms reflects the interconnections of different legal systems. Here, domestic experts distinguish two stages:
The first is the choice of the optimal system. Here the following tasks are solved:
- Is there a need to introduce a conflict of laws norm?
- What kind of it to use?
- Where does the reference go, to which right?
The solution is to fix these problems:
- circumvention of the rule of law;
- reciprocity;
- initial qualifications;
- reverse reaction.
The second stage: resolving a controversial issue on the basis of foreign law. The following dilemmas form here:
- Public order.
- Imperative Russian and foreign standards.
- Formation of the content of foreign law.
The most scrupulous is paragraph 3. It implies the solution of special issues:
- attitude to foreign law:
- the procedure for installing it.
- actions of the court in the absence of norms in foreign law that are necessary to resolve a heated dispute or eliminate the consequences of incorrect formation of the content or use of this right.