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Российская доктрина гражданского правоприменения: вопросы становления и развития

Eremenko, Alexander (2010): Российская доктрина гражданского правоприменения: вопросы становления и развития. Published in: Lex Russica , Vol. LXX, No. 2 (2011): pp. 224-244.


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The article gives a level-metatheoretical investigation of methodological-organizational issues of the Russian doctrine of application of civil laws as a special juridical tenet of application of law, at the present stage and in the concrete-historical retrospect. The article has an analytic-review nature. A consideration of both legal and social-philosophical aspects of problems of formation, development and current state of the doctrine of application of civil laws, which continues to be emerged at the Russian legal school, takes the article’s central place.In light of the social-political history of the Russian state, the reasons of stagnation both in the dynamics of the theoretical-legal research, in general, and in the advancement of special-legal conceptions of application of law, particularly, are disclosed. Questions of system organization of the scientific-juridical communication influencing the results of scientific researche of fundamental problems of the Russian law, are put. In view of positiveness of the model of scientific-juridical communication as a tool of reproduction of new juridical knowledge, the author addresses to the experience of the discussion arisen on the pages of juridical magazine "Soviet state and law" in the 54-55 years of the last century. This discussion served as an important factor of organizing of the scientific-juridical community and its stimulating to a joint scientific creativity, especially, in the field of general and special problems of application of law. By the example of the doctrine of application of civil laws, the cultural-historical correlation of the inductive and the deductive levels of the system of reproduction of legal knowledge is shown. This correlation reflects today's processes of interaction between the general theory of law as a jurisprudence's deductive level and the theory of civil law as a jurisprudence's inductive level. The tendency to a reciprocal scientific enrichment of funds of the general theory of law, which can be accomplished by means of breakthroughs and workings out of special theories of law, is revealed. This tendency demonstrates a character of change of positional roles of the general theory of law and the civil law theory when theorizing about empirical material of the application of civil laws, the results of which are capable to modify the overall scientific picture of the law application doctrine. The author describes a science of science meaning of the concept 'application of civil laws' as a particular doctrine of application of law. In the metatheoretical sense, the author proposes a definition of application of civil laws. The prospects of development of the Russian doctrine of civil law application, in framework of the improving legal space in modern Russia, are outlined.

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