Topic 1.1. The nature of the law

Topic 1.1. The nature of the law

1.1.1. The social norms.

The relations in a society are governed by certain rules. These rules are called the social norms. 

In a broad sense, “the norm” (‘the norm’) is the word of Latin meaning a rule, a model, a guiding principle.

Social norms are generally recognized rules designed to provide standards of conduct for society members. 

Social norm – due to social stereotypes. If a person’s behavior does not comply with the generally accepted customs and rules in a community, it is perceived as deviating from the norm.

Hence, social norms are an instrument of coordination and concerted actions of society members to ensure public interest and public order.

There are following types of main social norms: the norms of morality (moral standards);  the religious norms; the corporate norms; the norms that have become developed historically and become part of people’s habits; the legal norms.

Norms of morality – the norms of human behavior arising from morality. Their performance is a moral duty; their violation is a source of a moral guilt.

Morality can be defined as the totality of the ideas, views about good and evil, justice and injustice, honor and dishonor, conscience, etc., and the rules of behavior that form on their basis. 

The norms of morality are protected by the power of public opinion and inner conviction. The implementation of moral norms is controlled by society or a separate social stratum. 

Measures of public influence are applied to violators: moral condemnation, expulsion of the violator from the community, etc.

Customs are rules of behavior that have been historically developed throughout the life of several generations, which as a result of repeated repetition became a habit. 

They arise as a result of the most appropriate behavior. Customs have a social basis, which in the future may be lost. However, in some cases, customs may continue to act by force of habit.

Traditions – as the customs, have developed historically, but have a more superficial character (they can develop during the life of one generation). 

Traditions are understood as rules of conduct that determine the order and procedure for carrying out any events related to any significant events in the life of a person, enterprise, organization, state and society (traditions of demonstrations, feasts, receiving the rank of officer, solemn farewell of an employee to retirement, etc.).

Ritual is a ceremony, a demonstrative action, to instill certain feelings in people. During the ritual, the emphasis is on the external form of behavior. For example, the ritual of performing a hymn.

Ceremonies, like rituals, are demonstrative actions aimed at instilling certain feelings in people. Unlike rituals, they penetrate deeper into human psychology. Examples: ceremony of marriage or burial.

Business habits – these are the rules of behavior that take shape in the practical, industrial, educational, scientific sphere and regulate the daily life of people. Examples: holding a planning session in the morning of a working day; students meet the teacher standing, etc.

In certain sense, the social norms can be of the following types:

Political norms – these are the rules of conduct governing relations between nations, classes, social groups aimed at the conquest, retention and use of state power. These include the rule of law, programs of political parties, etc.;

Cultural norms or ethical norms. These are the rules of conduct relating to the external manifestation of attitudes towards people (form of treatment, clothing, manners, etc.);

Aesthetic norms are rules of behavior that regulate the relationship to the beautiful, mediocre, ugly;

Organizational norms – determine the structure, procedure for the formation and activities of state bodies and public organizations. For example, charters of public organizations.

Despite their inherent differences, all social norms are closely interconnected and aimed at:

a) Regulation of social relations by establishing certain rules of human behavior in society;

b) Streamlining and organizing social life to ensure public interest and public order;

c) The unity of the assessment of desirable and undesirable behavior for society – often law, religion, and morality prohibit or allow the same line of behavior. 

For example, theft by law is regarded as a crime, religion as sin, morality as a bad deed.

Social norms are characterized by:

the uncertainty of the addressee (who is in a specific capacity, in specific conditions provided for by social norms);

universality of application (in acts of social relations, production, exchange, interaction of individuals);

multiple repetition (a criterion of the historical process, indicating the pattern of development).

Hence, the social norms are universal and fix the rules of behavior that affect not a specific individual, but all people in similar situations.

At a certain stage of development of society, legal norms are separated from social norms.

 

Being social norms, legal norms have all the attributes inherent in social norms but, legal norms are different from other social norms. 

A legal norm is a generally binding, formally defined rule of behavior established or sanctioned by the state as a regulator of social relations and is provided by measures of the state coercion.

The features of the legal norm are the same as the law in general, but the legal norm does not have such a feature as systemicity.

There are such specific features of a legal norm:

1. Rule of conduct of a regulatory nature. The legal norm introduces a new rule, fixes the most typical social processes and connections; affects social relations, people’s behavior; is a model of regulated public relations.

2. Generally binding rule of conduct. The legal norm comes from the state, and should be perceived as a guide to action, which is not subject to discussion from the point of view of expediency.

3. General rule of conduct. The legal norm has a general (without specifying a specific addressee – non-personalized) nature, i.e. applies to everyone who becomes a party to relations regulated by the norm. In addition, as a regulator of social relations, the legal norm is characterized by multiple applications.

4. A formally defined rule of conduct of a representative-binding character. The legal norm enshrines the rights and obligations of participants in public relations, as well as legal responsibility (sanctions), which is applied in cases of its violation. By presenting rights to some, the legal norm imposes responsibilities on others. The legal norm acquires formal definiteness after it is stated in laws and other normative legal acts.

5. The rule of conduct adopted in a strictly established manner. The legal norm is issued by authorized entities within the boundaries of their competence and in accordance with a specific procedure: development, discussion, adoption, entry into force, change or cancellation of an action.

6. The rule of conduct, secured by measures of state coercion. The state creates real conditions for the subjects to voluntarily exercise the patterns of behavior formulated in the legal norm; applies methods of persuasion and coercion to the desired behavior, in particular, sanctions in case of failure to comply with the requirements of the legal norm.

The differences between the legal norms and other social norms are most clearly demonstrated by the comparison of the legal norms and norms of morality:

A) the legal norms creating by the state, and the norms of morality by the whole society; 

B) the legal norms enshrine in special acts of the state – laws, decrees, decrees, etc., and moral norms contain in religious, literary monuments, in chronicles, sometimes exist orally; 

C) the legal norms provide by state coercion or the threat of its application, and the norms of morality provide by public opinion; 

D) Violating the legal norms entails the legal liability, and in case of violation of moral norms, public condemnation or measures of a public influence apply.

The differences between the legal norm and the rule of law

The legal norms are the primary element of the law system. The legal norm is the basis on which the subsequent elements, such as the institution of the law and the branch of the law, are based. In fact, the institutions of the law, the branches of the law and the Law as itself are large associations of the legal norms.

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws.

Thus, the legal norms is the primary element of the law, and the rule of law is an invariable guiding principle, for example, the equality of all before the law.

More details on the rule of law will be provided at the appropriate place of this book.

So, the legal norm determines under what conditions it must act, what specific rights and obligations a person has under these conditions, what sanctions the state establishes in case of failure to comply with the legal norm. 

The legislator should strive for clarity and clarity in the presentation of the  legal norm. 

Each person, depending on the circumstances, should be able to navigate which particular  legal norm is applied in a particular case, and have a clear understanding of the occurrence of specific legal consequences in the relevant legal relationship, given the reasonable and predictable stability of the  legal norm.

The legal norms, unlike other social norms, have: 

a) a differentiated internal structure; 

b) a hierarchy; 

c) a consistency.

Differentiated internal structure, i.e., in the legal norm one can distinguish a hypothesis, disposition and sanction.

A hypothesis (if …) is a part of a legal norm, showing specific life circumstances, in the presence or absence of which this legal norm implements. 

The hypothesis not only contains the rule of behavior of subjects of law that the state desires, but also describes these circumstances and gives them the significance of a legal fact.

Disposition (then …) – part of the legal norm that formulates the rule of lawful behavior, or signs of unlawful behavior.

In civil law and in several other regulatory branches, dispositions appear in the form of rules of lawful behavior. 

In criminal law and other law enforcement sectors, most dispositions contain features of prohibited acts.

Sanction (otherwise …) is an element of a legal norm that shows the legal consequences of non-compliance with the requirements established in the disposition of a legal norm unfavorable for the offender (state coercion measures, legal liability measures, punishments).

Hence, the legal norm is a generally binding, formally defined rule of conduct guaranteed by the state, reflecting the level of freedom of citizens and organizations, acting as a regulator of public relations.

In aggregate, all legal norms create the law, as itself, aimed at regulating public relations.

 

1.1.3. The concept of the law

The process of the origin of the law and the state proceeded with their mutual influence on each other and was caused by the same reasons:

1. The needs of economic relations, which developed in the presence of private property, division of labor, commodity production and circulation, the need to consolidate the legal status of commodity owners, to ensure for them stable and guaranteed economic ties, conditions for economic independence;

2. The need to maintain stability and order in society in cases of deepening and exacerbation of social contradictions and conflicts;

3. An organization of public power, separate from the population, with power that is able to authorize customs, establish legal norms and ensure their implementation;

4. Transformation of a person into a relatively independent individual. Law is impossible where there is no division of the community (clan, tribe) into separate subjects. Law is possible where the individual is singled out as a person who is aware of the opportunities (freedoms) that arise in the development of society.

Thus, the origin of the law was associated with:

1) the qualitative complication of production, political and spiritual life of society;

2) the separation of the individual as a participant in social relations with their claims to the autonomy of existence (social freedom);

3) the formation of the state, which needed a new normative social regulator capable of performing the following tasks: a) ensuring the functioning of society as an integral organism of a higher order than primitive society, maintaining order and stability in it; b) to consolidate and ensure the individual freedom of the autonomous personality.

To fulfill these tasks was beyond the power of the normative regulators of the primitive communal system – the norms of customs. This role was assumed by the emerging legal law, the defining feature of which was a state coercion.

There are two ways to form law:

a) by means of norms emanating from the state;

b) by means of norms emanating from society and supported by the state.

Initially, the law was formed by the development of customs into legal customs, which were recorded, combined into special lists. 

As a result of this, customary law appeared – a system of norms based on custom, which regulates social relations in a society, in a particular area, or in an ethnic or a social group.

The leading elements of the socio-legal content of law have emerged among different peoples of the world: precedent, religious norm, custom-norm, legal norm, which, in the course of the further development of peoples and states, led to the formation of different national legal systems and their types.

The term “law” is used in the following meanings: social and legal claims (natural rights), positive law (expressed in the system of normative legal acts), law in an objective sense (law as a system of legal norms – labor, civil, family, etc. .), law in the subjective sense (officially recognized capabilities of a person).

In Ukraine, law is understood as a system of the legal norms (rules of conduct) and principles established or recognized by the state as regulators of public relations, which formally fix the measure of freedom, equality and justice in accordance with the public, group and individual interests (the will) of the population of the country and are provided with all measures of legal state impact up to coercion.

Shortly, the law is understood as a system of generally binding, formally defined legal norms established and provided by the state, aimed at regulating public relations.

At the same time, the specific definition of law depends on the type of legal thinking that represents a particular school of law. The variety of definitions of law allows the most complete disclosure of the essence of the law. 

Besides in the many thousand-year history of jurisprudence, it has been pointed out more than once that universal definitions should be avoided in matters of law, there is no consensus on the generally accepted definition of law in modern science.

Along with this, the law has distinctive features (properties), and as a system of the law is expressed in the sources of the law, but its legal content is determined by the norms of the law.

So, the law has the following distinctive features (properties), expressing the specifics of the law.

1. Expression of a measure of freedom, an equality and a justice means that law adequately embodies the fundamental human rights and freedoms recognized in the world community.

Law is a measure of freedom and equality of people, established by the state in such a way that the freedom of one does not restrict the freedom of another.

A complete freedom cannot be achieved, but one can be free to the extent that others are free.

2. Normativeness reveals the meaning and purpose of law. The normative nature of law introduces elements of unity, fundamental sameness into public life – law acts as a general scale, a measure, a regulator of people’s behavior.

With the help of norms, the law regulates various social relations, serves as an instrument for implementing the policy of the state, as a means of organizing its diversified management and other activities.

Normativeness has one essential feature: the law is expressed in normative generalizations (general permissions, general prohibitions, general obligations), which establish the limits of the freedom that achieved, the boundaries between freedom and non-freedom at a certain stage of a social progress.

3. Formal definiteness of the law means clarity, unambiguity, conciseness of formal legal prescriptions expressed in laws, decrees, regulations, etc. 

This is achieved with the help of legal concepts, their definitions, the rules of legal technique. 

That is why the subjects of the law clearly know the boundaries of a lawful and an illegal behavior, their rights, the freedoms, the duties, the degree and the type of responsibility for the offense.

The expression of the norms in the laws and other normative acts, the establishment of a formal equality is the main sign of the formal certainty of the law.

4. The systemic nature of law lies in the fact that law is not just a set of principles and norms, but also their system, where all elements are connected and agreed.

The systemic is introduced into the law by legislation. Only a systemic, consistent law, expressing its essence through principles, is capable of fulfilling the tasks facing it.

Currently, in Ukraine, the most important and urgent task is to restore and strengthen the systemic nature of the law, since the inconsistency of regulatory legal acts undermined the systemic links between legal norms.

5. The volitional nature of law, the expression of social, group and individual interests in it means that the will is manifested and embodied in law, the content of which is interest.

The law accumulates the public, group and individual will of citizens in their combination, consent and compromise.

The Will permeates human activity in all, including the legal, spheres of a life.

Understanding the will in law excludes the reduction of a law to an instrument of state violence, a means of suppressing individual will by the state.

Ideally, the state, through its legislative bodies, “raises into law” a public, a group and an individual interests that correspond to the principles of a justice, a freedom, a democracy, an equality, and a humanism.

6. The universality of the law is expressed in the fact that the established rules of conduct are general and binding for the entire country.

The universality of the law is given by the fact that it expresses the agreed interests of the participants in regulated relations, that it has a normative character.

7. Guarantee and security of the law by the state, up to coercion, testifies to the fact that the state power, the state as a whole, supports the general rules, which are recognized by the state as legal. Not all norms of the law are respected and fulfilled voluntarily, due to inner conviction.

A significant part of the population obeys the requirements of legal regulations only because the state is behind the law.

A state protection of the norms of law includes state legal coercion, various organizational, technical, educational and preventive measures of state bodies aimed at observing and fulfilling the legal norms by citizens.

Competent state bodies may apply measures of appropriate legal liability to violators of the requirements of the law.

Thus, the state ensures the universality of the norms of law.

It is necessary to distinguish between the concept of the law and the content of the law.

The content of the law is revealed through the specific historical and logical content of law.

The specific historical content of law is diverse, it corresponds to history, religion, culture, national identity, etc. The logical content of law presupposes, regardless of historical and other meanings of law, the possibility of applying an equal scale to unequal people, i.e. ensuring formal legal equality of unequal statuses of persons.

Freedom is the main content of the law, concluded in the form of a legal norm, which in modern conditions presupposes formal legal equality of all subjects of law.

Public law and private law.

Public law and private law are traditionally considered to be cross-cutting lines of legal development of the legal system (legal systems) of continental Europe and some other countries whose legal systems are similar to continental European.

Public law is a subsystem of law that regulates relations, related to the activities of public authorities (state power and local self-government).

Private law is a subsystem of law that regulates relations between subjects of law that are not directly related to public authority. Private law relations are related to the realization of the interests of individuals which are recognized and protected by law (private interest).

The sources of the law.

The Law as a system of the law finds expression in the sources of the law. The term “a source of the law” refers to the external form in which an objective law is expressed (the totality of all norms of law, the system of law). 

In this sense, the sources of the law are: a legal custom, a normative agreement, a judicial precedent, a normative legal act and a legal doctrine.

Legal custom is an act-document containing a rule of conduct that has developed due to repeated application for a long time, which is sanctioned by the state and provided by the force of a state coercion.

The state does not recognize all the customs that have developed in a society, but only those that are of the greatest importance for society, meet its interests and correspond to the historical stage of its development.

The legal custom is the most ancient source of law, historically and actually preceded the law.

Normative agreement – is an agreement (one of the parties of which is the state or a part of it), from which generally binding rules of conduct (norms of law) follow. A normative agreement can be international, or it can be an agreement within one state, for example, between a federation and its subjects.

Legal (judicial) precedent – an act-document containing new rules of law as a result of the decision of a specific case by a judicial or administrative body, which is given generally binding significance when solving similar cases in the future. 

It is one of the leading sources of law of the Anglo-American type of legal systems – England, USA, India, etc.

Normative legal act is an official document-document of the competent authority containing the rules of law provided by the state (constitutions, laws, presidential decrees, resolutions, etc.)

It is the main legal source of law in most countries, especially the Romano-Germanic type of legal systems – France, Germany, Italy, Spain, Ukraine etc.

Legal (law) doctrine – scientific works on legal topics. It can become a source of law if it is sanctioned by the state. For some time, legal doctrine was of great importance as a source of law in the system of Roman law.

The law is a regulator of relations in society. But only part of the relations in society are regulated by means of the law. This part of relations in society, regulated by the law, are the legal (law) relations.

For example, inviting guests to dinner, the hostess expects them to arrive. But the relationship that has arisen about dinner is not a legal relation.These relationships generate expectations only, not the legal rights and the legal obligations.

Therefore, if the guests do not come, they cannot be held legally liable, since the relationship regarding the dinner is not regulated by the legal norms and, therefore, is not a legal relationship.

On the other hand, if the hostess bought the new stove for cooking dinner, and the stove turns out to be a non-working stove, then such a  relationship becomes a legal relationship, since they are governed by the legal norms in the field of product quality and the consumer protection.

Hence, the legal communication of people and legal entities occurs through interrelated legal rights and legal obligations, since the legal right of one presupposes the legal obligation of the other. 

Besides, the participants in a legal relationship (subjects of law) have the opportunity to exercise their rights and obligations both in relations with other persons and outside of them. 

Thereby, there are two ways to implement the rights and the obligations:

1) the use by the subject of his rights and the performance of his duties when he does not enter into relations with other persons. For example, the owner can own, use and dispose of his property at his own discretion;

2) the use by the subject of his rights and the performance of his duties when he does enter into relations with other persons.  This is due to the impossibility of exercising rights and fulfilling obligations without appropriate actions on the part of other subjects of law (for example, exercising the right to purchase a car requires a relationship with a car dealership).

There are the following main features of legal relations:

1. Participants in the legal relations (subjects) are linked by legal rights and legal obligations.

2. Legal relations are the legal form of various social relations (economic, labor, family, etc.)

3. Legal relations arise, change and terminate, as a rule, on the basis of the legal norms.

For example, the purchase of a car by a citizen K., as a life circumstance and a legal fact, leads to the emergence of a legal relationship. 

The object of this legal relationship is a car. 

The participants in this relationship are K. and the car dealership. 

The legal content of this legal relationship is the legal rights and legal obligations of its participants. 

Thus, citizen K. is obliged to pay for the cost of the car. Citizen K.’s right is the right to demand a car. On the contrary, the car dealership has an obligation to provide citizen K. with a car. The right of the car dealership is the right to demand payment of the cost of the car.

Hence, the actions of citizen K. as a legal fact led to the emergence of a property legal relationship. As a result of the implementation of this legal relationship, citizen K. acquired the ownership of the car.

If citizen K. leases his car, then a legal relationship arises regarding the use of someone else’s property. If citizen K. sells his car, then this legal relationship is terminated.

The composition of legal relations.

To understand specific legal relations, the following legal structure is used – the composition of the legal relations. The composition of the legal relationships is the structure of any legal relationship that allows us to evaluate and analyze any legal relationship.

In addition, the composition of a legal relationship can be defined as a set of the elements necessary for the emergence, the existence and the termination of a legal relationship.

Thus, there is the following structure of legal relations.

1. The participants of the legal relations or the subjects of the legal relations are persons who participate in a legal relationship and have the legal rights and the legal obligations. Such persons can be: the individuals, the legal entities, the state, etc. 

A participant of a legal relationship can be a person only who has the ability to be a subject of law. This ability is called legal personality. Legal personality means the right of a person to have the right as such. 

Legal personality is subdivided into legal capacity and legal capability.

For example, the state of Ukraine recognizes for all citizens of Ukraine the ability to have rights from the moment of birth to the moment of death. This ability to have rights and to acquire obligations is called legal capacity. Shortly, all  persons shall be able to have rights and obligations (legal capacity).

A person’s legal capability shall mean his/her capability to acquire rights by his/her actions and to exercise them independently as well as the capability to create obligations by his/her actions, perform these obligations independently and bear responsibility therefore in case of non-performance thereof. 

Thus, the legal capacity inherent in all citizens from birth can be realized through legal capability, which comes from a certain age or under certain conditions.

For example, a grandmother left the house as a legacy to her granddaughter. Thanks to legal capacity, the granddaughter can be the heir and inherit the house. But the granddaughter will not be able to manage the house, pay bills and make transactions regarding the house until she reaches the age of majority. Until that moment, a guardian or trustee will act on behalf of the granddaughter, realizing her legal capacity.

2. The object of the legal relationship –  a tangible or an intangible good (benefit) for which the subjects enter into a legal relationship. 

The main objects of legal relations may be the following:

1) natural objects, ie the earth, its subsoil, atmospheric air,

water, forest and other natural resources; they are natural, not created by humans, but used by them to meet their needs;

2) things, including money and securities, other movable and immovable property. Objects of the material world satisfy various human needs and act as objects of property relations (for example, in purchase and sale, gift, exchange, inheritance);

3) intangible benefits (personal and social): life, health, honor and dignity, freedom, inviolability of home, human and civil rights, constitutional order, public order and security, environment, good governance, etc. They are recognized as important for society and people, as a result of which they are protected by the law;

4) results of actions, including services and results of work.

They are provided in the areas of management, consumer services, economic, cultural, educational and other areas (eg, social, administrative, financial, household);

5) objects of intellectual property rights (literary and artistic works, computer programs, scientific discoveries, trademarks, etc.). Various legal relations arise regarding their use and transfer.

3. The legal content of the legal relationship – the legal rights and the legal obligations of the participants (the subjects) of the legal relationship.

The legal rights or the subjective rights.

The realization of interests becomes possible through endowing the individual with subjective rights. These subjective rights, on the one hand, make it possible to satisfy the legitimate interests of the individual, and on the other hand, the norms of law establish the limits of the actions of the individual, when he realizes his own interests. So, The exercise of the legal rights of one person must not violate the rights of the other.

The legal obligation.

A legal obligation is a measure of proper human behavior established by the legal norm. The legal obligation rests with the obligated person, who must choose the option of behavior provided for by law – to carry out certain actions or refrain from them.

Legal obligation includes: 

1) the need to take certain actions or refrain from them;

2) the need to respond to the legal requirements of the authorized person; 

3) the need not to prevent the authorized person from using the benefits to which he is entitled; 

4) the need to take responsibility for non-compliance with legal obligations.

4. The jural facts – a life circumstance with which the law connects the emergence, the change or the termination of the legal relations.

There are the following main types of legal facts:

1) the legal events – these are legally significant life circumstances, the occurrence of which does not depend on the will of man. 

For example, a flood is an event that, as a rule, does not depend on the will of a person, but serves as the basis for the emergence of legal relations. 

Thus, the authorized body of state power adopts an appropriate decree on the supply of food and basic necessities to persons affected by flooding. 

Financial assistance and temporary housing can also be provided for flood victims. Hence, an event that does not depend on the will of a person serves as the basis for the emergence of various legal relationships: financial, housing, etc. 

2) the legal actions – are legally significant acts of a person. The legal actions  depend on the will of a person. The most common example of a legal action is the contract.

Legal actions are classified into legitimate actions and illegal actions.

Legitimate actions comply with the norms and principles of law, illegal actions contradict the norms and principles of law.

The most common example of an illegal action is the offense.

1.1.5. The offense

The offense is an act of a person (natural or legal), which is committed by action or inaction. 

For example, deliberately stabbing the chest with a knife is an action. Moreover, the offender is aware of the wrongful nature of his actions, foreshadows the onset of harmful consequences and wishes for the onset of these harmful consequences.

On the other hand, there is a general obligation to provide assistance to anyone who needs such assistance as a result of being in a life-threatening condition. 

Failure to provide assistance to a person in a life-threatening condition is an example of an offense of inaction.

The thoughts, an emotional experience or even intentions until they are realized in the action or the inaction are not an offense.

An offense as an unlawful behavior always violates a legal norm that prohibits a public dangerous act.

To recognize an action or inaction of a person as an offense, at least one of the main signs must be present – public danger. 

Public danger is the essence of the offense, which consists in causing damage to the legitimate interests of the individual, the society and the state.

For example, the legitimate interests can be life, health, property, rights and freedoms of citizens, the established legal order, etc., which are harmed to more or less.

A public dangerous act is not only an act that caused damage, but one that created a threat of possible potential damage.

Besides, the offense has a consciously volitional nature, i.e. at the time of commission it depends on the will and consciousness of the offender.

Hence, a person’s mental attitude to an act or omission, which is defined as guilt, is important for understanding of the offense. Thus, causing damage in the absence of guilt is not considered as an offense.

The offenses according to the degree of public danger are divided into the crimes and the misdemeanors.

In general terms, it seems possible to formulate the following definition of an offense:

An offense is an illegal  (unlawful ) socially harmful culpable act (action or omission) of a delictual person, for the commission of which a person may be held to legal liability.

The offenses (delictum) according to the degree of public danger are divided into the crimes and the misdemeanors.

The main features of the offense:

1. Misbehavior. There are two main criteria for distinguishing lawful behavior from unlawful behavior: public damage (guilt) and public danger (crime). For example, socially harmful behavior is absence from the workplace without good reason during the day, and socially dangerous behavior is an encroachment on a person’s life.

The legal aspect of damage is expressed in the violation of subjective rights and legal obligations or in opposition to their implementation. The material aspect of damage is to cause the participant a legal relationship of material damage or moral damage.

Unlawful, illegal behavior is contrary to the legal norms. Also, this behavior is carried out contrary to the law. Such behavior is the arbitrariness of the subject and violates the prohibitions specified in laws and regulations. Also, this behavior is a failure to fulfill obligations arising from a legal act or contract concluded on the basis of law.

2. Consciously volitional behavior is determined by the human psyche, which at the moment of committing an offense is under the control of will and consciousness, is carried out consciously and voluntarily.

The absence of free expression of the will is a legal condition according to which an act is not recognized as an offense, even if it had harmful consequences. 

An offense is only the unlawful act of a delinquent person (minors and the mentally ill are not considered as delinquent).

Thoughts, intentions, beliefs that did not appear outwardly are not recognized by the current legislation as the object of persecution until they have turned into illegal acts. 

The practice of persecution for dissent (opposition) is a manifestation of the repressive nature of the totalitarian regime in the state.

3. Сulpable act is an action that expresses the negative internal attitude of the offender to the interests of people, caused by his action (or inaction) damage to society and the state, and contains proven guilt. Guilt is a person’s mental attitude to his action (inaction) and its consequences, expressed in the form of intent and negligence.

The absence of these features does not allow to consider the act as an offense. Thus, causing damage in the absence of guilt is not considered an offense.

The composition of the offense.

The composition of the offense is formed by the following elements:

1. The object of the offense is public relations protected by law, at which the unlawful act is directed.

The object of the offense can be social and personal values, which are damaged by the unlawful act.

2. The subject of the offense is the person who committed the offense.

3. The objective side of the offense, which characterize the offense as a certain act of external behavior: 

a) the act as an act of volitional behavior; 

b) the harmful result of the act. It causes material or non-material harm to society or its members; 

c) a causal relationship between the act and the result, the establishment of which is very important when considering criminal cases.

4. The subjective side of the offense. It is formed by guilt, which means the psychic attitude of the subject to his unlawful behavior and to its consequences. There are two forms of guilt: intent and negligence.

In some cases, the optional elements of the subjective side of the offense may be its motive and purpose.

The motive is the motivation that guides the offender during the commission of the offense.

The goal is the idea of the subject about the result of the offense being committed.

The types of the offenses.

Offenses are classified according to two main features: the branches of law and the degree of public danger.

By branches of law, the offense is divided into criminal, administrative, civil and disciplinary.

But this list is not exhaustive. Offenses may occur in other areas of law, if their features are fixed in the relevant legal norm. Thus, offenses can occur in the regulation of constitutional, tax, commercial law, areas of international law and so on.

According to the degree of public danger, offenses are divided into criminal – crimes and criminal misdemeanors, as well as other misdemeanors, which can be administrative, civil or disciplinary.

An offense is the basis for bringing a person to legal liability.

Legal liability is a specific type of social liability associated with the state. The state, performing its law enforcement functions, has the legal possibility of using state coercion or other restriction of the rights and freedoms of a person or a legal entity.

The only basis for legal liability is the commission of an offense. Any offense must be provided for by the legal norm, which establishes the measure of liability for the offense.

Legal liability can be defined also as a legal relationship in which the state has the right to apply certain measures of state coercion to the offenders who have committed offenses, and the duty of offenders to endure deprivations or restrictions provided for by the sanctions of the rule of law.

In other words, legal liability is the reaction of the state to the offense, which is to apply to the guilty person the state coercion measures of a personal,

property or organizational nature.

For example, an adverse personal consequence for the offender is the imprisonment of the offender. Adverse property consequences for the offender is the imposition on him of the obligation to pay a fine. The negative consequences of an organizational nature for the offender is the revocation of the license to engage in a certain type of activity.

The social purpose of legal liability is the protection of public relations. Legal responsibility performs the following basic functions: 

a) law enforcement function; 

b) educational function.

The state exercises its right to apply legal liability measures in three stages:

1) the prohibition of socially dangerous misconduct and the establishment of the necessary measures in the sanctions of legal norms;

2) individualization of sanctions for specific offenders;

3) ensuring that offenders are incurring appropriate deprivation.

The main features of the legal liability:

1) Mandatory presence of an offense as the basis for its occurrence.

2) The official nature of state condemnation (censure) of the behavior of the offender.

3) Always has adverse consequences for the offender: property (material), moral, physical,organizational, political and others.

4) The nature and extent of the offender’s deprivation are established in the sanction of the legal norm.

5) Use of mechanisms of state coercion.

6) The imposition of hardships on the offender, the application of state-coercive measures to him is carried out in the course of law enforcement activities by the competent state bodies in the manner and forms strictly defined by law.

Principles of legal liability:

1. Legality – a person can be brought to legal responsibility only by competent authorities in a strictly prescribed manner and on the grounds provided by law.

2. Justice – responsibility is borne by the one who committed the offense.

The type and measure of punishment depend on the severity of the offense. A law that establishes or strengthens liability is not retroactive.

If the harm caused by the violator is reversible, legal responsibility must ensure that it is recovered.

3. The inevitability of the onset of legal responsibility – no one can be exempted from responsibility and punishment under any pretext without legal grounds.

4. Individualization of punishment – provided by the possibility of choosing various means of legal influence, taking into account the nature and degree of public danger of the committed unlawful act, the personality of the perpetrator, the circumstances provided for by law as mitigating or aggravating responsibility, etc.

5. Responsibility for guilt – responsibility can arise only if there is guilt of the offender, which means the person’s awareness of the inadmissibility (unlawfulness) of his behavior and the consequences caused by it.

Types of legal liability:

It is necessary to keep in mind that legal liability is established for the commission of a specific offense by a specific person, i.e. it has an individual character. This principle is ensured by the possibility of applying the type of legal liability depending on the degree of social danger of the offense.

There are two main types of liability: penalty (punitive) – the purpose is punishment for the offense, and recurring – compensation for damage caused by the offense (property, moral).

Depending on the type of offense and the method of liability:

Criminal liability – is imposed for the crime and only by the court in the form of criminal punishment.

Administrative liability – for administrative offenses, imposed by various administrative bodies (administrative commission, customs service, border service) in the form of arrest, fine, deprivation of special rights, etc.

Disciplinary liability – for disciplinary misconduct within the scope of official activities imposed by the chief, who is in charge of the offender. For example, the disciplinary liability of a lawyer (Article 16 of the Law of Ukraine “On Advocacy”).

Civil liability – is imposed for civil non-contractual violations that cause material damage or non-pecuniary damage to the victim, as well as for breach of contractual obligations (fines, penalties, damages). It is based on the principle of equivalence, full compensation for damages, imposed by the courts or voluntarily implemented by the violator: the fine is paid voluntarily, the damage is compensated.Liability of employees occurs for material damage caused to the enterprise, institution in the performance of official duties, has a limited nature.

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