Types of norms of law are imperative and dispositive. Rules of law: legislative framework

Civil legislation is a set of normative acts (and not rules of law, as legal industry) various legal force. At the same time, the regulatory acts covered by it in many cases have a complex, intersectoral nature, since they often contain not only civil law norms. Even in the Civil Code there are rules of a public law nature, for example the rules of Art. 3, establishing the composition civil legislation. In acts of civil legislation, civil law norms prevail, but very rarely completely replace norms of a different legal nature. This is due to the fact that the legislator usually thinks about the content side, and not about industry affiliation the acts it adopts. The norms contained in them, by virtue of their objective legal properties are divided into public law and private law.

A fundamental feature of civil legislation is the presence in it large number dispositive rules that apply only if the participants in the regulated relationship do not provide for a different option for their behavior. In other words, such rules are complementary in nature, because they are designed to fill the will of the subjects themselves that is missing for some reason. Such norms prevail in regulation contractual relations, i.e. property turnover (cf. paragraph 2, paragraph 4, article 421 of the Civil Code). They reveal the features of civil (private) law, which usually allows participants regulated relations choose the most acceptable option behavior within a general framework, established by law, endowing them with the appropriate legal possibilities. The dispositive norm usually contains certain rule behavior, provided with the clause “unless otherwise provided by the contract,” which allows the parties to regulate their relations differently than this general rule provided by law.

However, in civil law there is also significant amount generally binding, imperative norms that do not allow any deviations from their content (especially when determining the status of subjects and the regime of objects civil legal relations, as well as the contents of property and exclusive rights). Moreover, in case of doubt about legal nature specific civil law norm one should proceed from its imperative nature, because dispositiveness must be directly, unambiguously expressed in it, being still a feature, and not a general rule of legal, including civil law, regulation.

The normative acts included in civil legislation constitute a very significant legislative body in terms of volume. Their inevitable abundance is caused by the breadth and complexity of the very subject of civil law. legal regulation. At the same time, this circumstance makes it difficult to become familiar with the current civil law and significantly complicates the establishment of the necessary relationships between the various acts that constitute it. Therefore, specifically for civil law paramount importance has a solution to the problem of its systematization and ordering.

The main methods of systematization (streamlining) of legislation used by the state in the civil legal sphere include incorporation, consolidation and codification.

Incorporation of normative acts is the consolidation of previously issued acts into single source(collection) without changing their content. Official incorporation usually issued in the form approved by the highest government agencies a single code, collection or other collection of laws or other regulations. Examples of such incorporation are the Code of Laws Russian Empire and Assembly current legislation USSR(which was not completed). Unofficial incorporations are represented by various collections of normative acts, usually of a thematic nature, prepared by their authors, including for educational purposes.

Consolidation of normative acts is the unification of a number of acts devoted to general circle questions into one normative act, sometimes even of higher legal force. For example, current Law about banks and banking replaced a number of previously existing disparate acts in this area and separate standards both legislative and subordinate. The advantage of consolidation is the possibility of some clearing up of legislation during its unification by repealing (omitting) or replacing clearly outdated or repetitive norms, but without making changes to their content.

At large quantities changes (novels) made to the law or other normative act, the possibility of repeating it is also used official publication V in full(novelization), in which old edition the act becomes invalid. Yes, in connection with big amount changes in 1996, the Law on Banks and Banking Activity, adopted in 1990, and the Law on the Protection of Consumer Rights, adopted in 1992, were officially republished. This technique, unfortunately rarely used by domestic legislators, greatly facilitates the application official text normative act.

Highest form systematization of legislation is its codification, in which a single new law(less often - a by-law) that repeals the effect of a number of old regulations. A special feature of the code is that it is structured according to specific system with indispensable emphasis general provisions(general part) and its coverage of all the basic rules of the relevant area, which, in particular, predetermines the adoption of other normative acts in this area, including laws, in accordance with its norms and thereby its central, system-forming place in the general complex of normative acts. Therefore, the code becomes the main source of law for the relevant industry.

In civil law, codification can be general (industry) or private (subindustry, and usually complex) in nature. In the first case, it is expressed in the adoption of a civil code covering all the basic norms and institutions of this branch of law. In the second, in the adoption of a law, including in the form of a code, regulating a certain narrow (sectoral or intersectoral) group of public relations (for example, Housing Code, Merchant Shipping Code, Air Code etc.), for which it is possible to develop some general provisions.

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Dispositive norms are designed to fill gaps in the text of the treaty formed due to the lack of decisions in it on relevant issues.  

Dispositive norms have an advantage over not only imperative, but also optional norms. This is explained by the fact that, unlike dispositive rules, optional rules themselves are unable to eliminate uncertainty in the relationship between the parties in cases where gaps in the contract are discovered at the stage of its execution or during an arbitration dispute arising over a violation of the contract. In this regard, the replacement of optional norms with dispositive norms deserves support, which cannot be said about the reverse process - the replacement of dispositive norms with optional ones.  

Dispositive norms, which represent one of those assigned to the participant civil turnover guarantees of free will, at the same time they have very important feature legal and technical nature.  

Dispositive norms, undoubtedly, most closely correspond to the essence of the industry civil law created to regulate market relations. At the same time, as part of civil legislation - and this fully applies to its institutions, dedicated to treaties, - a lot of imperative norms.  

As a general rule, dispositive norms have certain advantages over optional norms. Unlike the former, the latter by themselves are not capable of eliminating uncertainty in the relationship between the parties in cases where gaps in the contract are discovered at the stage of its execution or consideration by the court of a dispute arising over a violation of the contract. In this regard, the replacement of optional norms with dispositive ones still (again, as a general rule) deserves support, which cannot be said about the reverse process - the replacement of dispositive norms with optional ones.  

The dispositive norm of the code gives the contractor the right to involve a third party in the performance of his obligations of his own free will. And only as an exception, due to the fact that the figure of the performer may be important for the customer, the contract or law may include a condition under which the contractor must personally fulfill the obligation.  

Dispositive norms are those that are intended to fill the gaps of the will of individuals in the acts they conclude. In cases where private individuals have acquired the right to freely regulate their relations, they can give these acts any content, as long as the requirements of coercive norms are not violated. But if the act drawn up by the parties contains gaps regarding any details that the parties did not provide for when concluding it, then these gaps are filled in by dispositive norms.  

Comparing dispositive norms with imperative ones, there is reason to come to the conclusion that the former, by their very essence, represent only a conditional version of the latter. This means that any dispositive norm turns into a mandatory one solely due to the fact that the parties did not express consent to deviate from it, having provided for some other option in the contract. Thus, both mandatory and dispositive norms (the latter due to the absence of otherwise in the contract) themselves automatically become rules of conduct for counterparties. From the moment of conclusion of the contract, the dispositive norm, unless otherwise provided in it, is the same absolute regulator of the parties’ behavior that knows no exceptions, as is the imperative norm.  

Taking advantage of the dispositive norm established by Art. 725 Civil Code of the Russian Federation, auditor ( audit firm) can regulate their occupational hazard, as well as the terms of professional risk insurance.  

Consequently, the dispositive rule applies only when private individuals have not ordered otherwise.  

Civil Codes are dispositive norms. This means, in particular, that the parties have the right to stipulate in the contract any other solution to the issue of the consequences of impossibility of performance.  

A common attribute of a dispositive norm is the formula: unless otherwise provided in the contract. The text of the norm usually begins or ends with it.  

Refusal of a dispositive norm can take only one form: fixed in law or other legal act in the form of a dispositive norm, the rules are replaced by others included in the contract. This means that if a particular provision is dispositive, the parties, as a general rule, have the right to exclude the effect of the corresponding provision altogether, except in cases where the latter is essential in nature. In addition, the norm does not apply even when it is tied to any condition of the contract, which may not be there.  

There is between a dispositive norm and custom business turnover and, if there is a direct reference to it, certain differences. One of them is that the dispositive norm itself contains the fallback option that the parties must keep in mind. In case of a custom of business practice, the rule, unless the corresponding custom is recorded in any document, must be found by the parties or the court in order to apply the relevant norm of the PS addressing the custom of business practice.  

Unlike dispositive norms, imperative norms do not have external attributes. The very way in which the rule is presented, and in particular the absence of reference to the possibility of stipulating otherwise in the contract, should indicate its unconditional binding force on counterparties. The last circumstance is very important, because the business contracts are often regulated by norms that cannot be classified as either imperative or dispositive.  

Behaviors that are subject to specification and clarification by agreement of the parties to relations regulated by these norms or by choice of the subject of law. The term “dispositive” (from the Latin dispositivus - disposing) literally means “allowing choice.” they can do it themselves mutual agreement establish your rights and obligations. These norms contain a certain prescription only for, if not regulated by agreement certain relationships. Availability of D.n.p. - a concrete manifestation of the democracy of law, which within the framework of the law gives scope for the expression of will of the participants of the regulated public relations. The norms of modern civil law of the Russian Federation, in particular those contained in the Civil Code of the Russian Federation*, are predominantly dispositive in nature.

Large legal dictionary.

Akademik.ru.

2010. See what a “dispositive rule of law” is in other dictionaries: Dispositive rule of law- (English dispositive legal norm) a rule of law containing relatively certain dispositions

, i.e. rules of conduct that are subject to specification and clarification by agreement of the parties to the relations regulated by these norms or at the choice of the subject of law... - Encyclopedia of Law DISPOSITIVE RULE OF LAW legal norm, containing dispositions that are subject to specification and clarification by the parties who have entered into relations regulated by these norms. Under dispositive norms, the parties have the right to determine their rights and obligations by mutual agreement.… …

Legal dictionary certain dispositions

modern civil law Rule of law- (English norm of law, legal norm) rule of behavior Large legal dictionary

general , designed for repeated use, established or sanctioned by the state, having generally binding force, endowing legal entities with legal rights and... ...

Rule of Law Dispositive Dictionary of business terms Dispositive norm- (supplementary) rule of law that provides the parties to the legal relationship regulated by it with a certain independence in determining their mutual rights

RULE OF LAW, DISPOSITIVE- a norm that defines the terms of the contract and is applied in cases where the agreement of the parties entering into the contract does not establish otherwise. The parties may, by agreement, exclude its application or establish a condition different from that provided for therein... Big economic dictionary - (Latin jus co gens; English imperative legal norm) a rule of law, the disposition of which is expressed in a certain, categorical form. I.n.p. contains an absolutely definite rule that cannot be changed during its implementation. For example, a number of norms... ... Large legal dictionary

Legal norms are the basis for everyone legal actions, thanks to them these actions can be carried out within the framework of the law. Any aspect of life cannot be solved without being guided by these instructions. Civil law rules allow regulate all relationships between citizens of the country legally correct in and economic disputes.

Their main characteristic is dispositivity, i.e. providing freedom of choice in the presence of many rules that control the relationships of citizens. However, there is also such a characteristic of law as imperativeness, i.e. clear instructions for action that must be followed by all participants in the relationship.

What are imperative and dispositive norms, their characteristics and differences will be discussed in this article.

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Methods of legal regulation

To begin with, it should be clarified that in in this case rights are system of mandatory statutes and rules of conduct who are involved in regulating relations in society.

Any conflict between citizens is regulated by established legal rules. There are two main methods of regulation:

1. Imperative – this method extremely precise, it is he who requires the unconditional submission of subjects to the code of rules provided for a specific case. It accurately characterizes not only the rights, but also the obligations of subjects, as well as does not give them the opportunity to change anything in the agreement. An example of a method would be the punishment of a criminal by the state: strict measures are applied that the subject cannot change. In literature imperative method called authoritarian, subordinating and subordination method.
2. Dispositive is an equal method that speaks of equal legal rights participating entities and their freedom of will. It is used in the areas of civil, labor, administrative, legal and family relationships. The regulatory basis is the agreement concluded by the parties, which specifies their capabilities and responsibilities. An example of a method would be the creation of contracts for purchase or sale, storage or lease. In the literature it may be called the autonomous method.

Important! Dispositive method always indicates the type of relationship between the participants.

These methods differ significantly from each other, since they are based on completely different legal regulations, despite the fact that they are equally aimed at managing subjective relationships.

Dispositive rule of law

What is a dispositive form of relationship? The concept of dispositivity comes from the Latin word dispositivus - disposing, and dispositive norms of civil law imply the presence of certain rules of behavior that are specified by the subject himself.

Simply put, in relationships, their participants independently determine responsibilities and opportunities for each other. This form of relationship is democratic and typical for the majority civil relations.

Besides established rules, these laws also include regulations in case of failure to comply with subsequent punishment (fines, penalties, etc.). Today Civil Code The Russian Federation contains mostly just such articles.

Dispositive legal ones include:

• having a disposition;
• allowing subjects to choose the manner of their behavior;
• defining and delimiting the positions of subjects on trial;
• defining responsibilities;
• excluding taking into account the positions of the parties in case of disputes about property.

Examples include Articles 211, 212, 455, 713 of the Civil Code of the Russian Federation. Any such article provides freedom of choice of the parties in determining their obligations and rights, the basic pattern of behavior and the nature of the relationship. It is quite easy to immediately determine that this is the method of settling relations that is being used - the phrases “unless the agreement provides otherwise” and similar ones are written in the agreement of the parties.

Mandatory rule of law

Mandatory norms of law differ significantly from dispositive norms, are their complete opposite and do not provide freedom of action. They are examples of authoritarian laws and established rules. Imperativeness is the absolute unconditionality of requirements and a fairly precise designation of the rights and obligations of each party to the dispute. This form of relationship completely excludes the right to choose and is the basis for many laws, for example, those prescribed in the Criminal Code.

Mandatory rules of law can be immediately determined by the written law - it will include expressions such as “inadmissible”, “cannot” or “void”, as well as other elements of the prohibition.

This type of prescription requires clear legal restriction for relationships, i.e. their subjects are severely limited in their choices and actions.

Their goal is to protect economic freedoms parties and provide protection important interests society and state.

• prevalence - they are an indicator of objectivity in any disputes between the parties, which makes them inherent in any legal field;
• status - they stand above dispositive forms and have a special influence on the regulation of relations in society;
• method of use - they are used only as limiters;
• external form– these are not vague explanations, but clearly defined principles and limitations;
• functions - perform security, support, formation and regulatory work. At the same time, they are characterized by vesting the parties with legal responsibilities and opportunities.

The imperative nature of the instructions allows guarantee respect for civil rights, highlighting the most important ones, and also ensures compliance with established legal requirements.

Classification

Any form of law is varied and can therefore be characterized in different ways.

The imperative form can be classified primarily by the nature of the order:

• obligatory - such laws indicate to subjects the need to perform some action. For example, the third part of Article 91 of the Labor Code of the Russian Federation says that the employer is obliged to take into account the working time of each employee;
• authorizing – this category of laws gives freedom of choice regarding the nature of actions, i.e. the subject can independently choose to perform certain actions or not. For example, the second part of Article 295 of the Labor Code of the Russian Federation says that every employee can exercise the right to receive benefits from property that is in the economic use of the company;
• prohibiting - such laws clearly state prohibitions on certain actions. For example, the second part of Article 91 of the Labor Code of the Russian Federation prohibits labor activity workers over 40 hours a week.

In addition, they are also distinguished by:

1. Degrees of certainty are relatively certain (offer a choice from several options) and absolutely certain (offer only one option).
2. Position in the system - there are special ones that can only be applied to specific case, and general ones that apply to all situations.
3. Method of regulation - can be in the form prohibitions, principles or recommended regulations.
4. Action times are divided into permanent and temporary.
5. The order of behavior is static, which confirms the position of the parties and their capabilities, and dynamic, prescriptions for the position and capabilities of the parties change over time.

Based on the data given above, we can conclude that imperative and dispositive statutes have significant differences and are opposite to each other. Main difference imperative norm is that it does not allow the subject to make independent choices or make independent decisions. All it can provide to the subject is choice from several proposed options. And dispositive ones are applied only in cases where the parties did not foresee a different outcome of events, leaving them to decide and determine their responsibilities independently.

Important! Classification differences allow the use imperative articles relatively various situations and regulate the relations of subjects on various levels.

Useful video: what are the rules of law

Civil law rules cover and prescribe the actions of parties in any type of activity. These laws are completely different in their characteristics and provisions, but their knowledge makes it possible for subjects to follow them and competently formalize their activities from the point of view of current legislation.