Lavrinenko O.V., Candidate of Jurisprudence, Senior Lecturer, Donetsk Legal Institute of Lugansk State University of Internal Affairs of E.A. Didorenko

System of Branch Principles as the Basic Criteria of Branch of The Labour Law: Theoretical Aspect

Results spent by the author of the given publication of researches became the basis for following conclusions and generalisations. Questions on system of the law and approaches (criteria) to its branch structurization (division) repeatedly became a subject of discussions among a wide range of experts. Heightened interest to this question speaks to big theoretical and its practical values. Directions of codification of the legislation depend on its correct decision, carrying out of scientific researches in the field of jurisprudence, the correct organisation of teaching of jurisprudence. Undoubtedly, designated questions on character are problem that is why quite naturally became a point of issue of representatives of various branches of jurisprudence. First such discussion has taken place in 1938-1940 in which course base, radical questions of branch structurization have been considered. The second discussion has been spent already in 1956-1958 on pages of the most authoritative legal edition «The Soviet State and the Law» where many problem questions of the first discussion have been again mentioned, in particular has been carried out the analysis of, whether the system law, generated in the late thirties of XX century (we will notice, that the modern labour law was generated in separate branch of the law just during this period – in 50-60 of the last century) has justified itself. In third time to this problem have come back already 1982 when the magazine «The Soviet State and the Law» has published extensive materials of session special «a round table» on the given problematics. As a whole, and also at level of branch of the labour law works of numerous scientists are devoted research of teoretiko-methodological aspects of processes of legal structurization. Giving due available theoretical to operating time, we will notice, that, nevertheless, even the superficial analysis of modern processes formations of branches does not give the bases for a conclusion that the problematics of branch structurization has completely lost the urgency, is faster – on the contrary. Today, as it is marked in the literature, «spontaneous unjustified multiplication» legal branches only to «semantic signs» is observed, some modern writers with a known share of sarcasm predict occurrence in further and such rather «exotic» branches, as the «bath-and-laundry» or «tramvajno-trolleybus» law. At the same time, the law system is the phenomenon rather dynamical and «quantity of branches is law constantly increases. And it is entirely natural. Evolution of a public life requires development and improvement and the most legal regulation. Deepening of legal regulation, the main way of development of the modern legislation.

Both in the general theory of the law, and at level of branch jurisprudence traditional it is considered the approach according to which allocation of certain branch of the law is carried out on the basis of two major factors (criteria) – a subject and a method(s) legal regulation. At the same time there are also other various approaches: for example, that a law method along with a subject of legal regulation name criteria with which help the law system shares on separate branches, and concerning a subject – there is more than clearness, than concerning a method where there are certain problems: disputably, that the method of legal regulation rises to a rank of criteria of division of system of the law to separate branches. Not the method of legal regulation defines law branch, and the law branch defines a method of legal regulation; the method of legal regulation is based on principles of certain system of the law; presence of branch principles as well as independent subject and method, characterises law branch as independent in system of the law of the state; along with a subject and a method of legal regulation law principles are a sign of independence of branch of the law; the most effective way of formation of branch of the law (in the presence of necessary material and legislative grounds) – the edition uniform codificational certificate covering the corresponding generality of legal norms as a whole. Modern practice testifies, that to forming branch to factors (criteria) many other things concern also – for example, presence corresponding «a circle of sources of the law and structure of a standard file», «legislation systems, interest of the legislator in allocation of separate branch» or, say, «patrimonial signs of the maintenance of the public relations regulated by this or that system of norms of the law»; each branch of the law has «the basic institute» which fixes general branch law principles, defines a subject and branch problems, contains other general provisions. Standard establishments of such institute as though «cement», unite in complete formation of norm of the law and branch institutes, define them «necessary properties as components given, instead of other branch of the law». In our opinion, conceptually the system forming branch factors should be built on a hierarchical basis as some of the criteria offered in the doctrine are of secondary importance, and separate from them are represented rather disputable or even insolvent. Jurisprudence – rather difficult many-sided complete phenomenon. Existing traditions of the law and legal system cannot be broken simultaneously, and, in addition, without the sufficient bases on that. At the same time, «development of scientific knowledge – owing to its difficult and multilayered structure – not unidirectional monotonous, «one-plane» process. It always process nonlinear, characterised different orientation changes of forms of scientific knowledge in which constantly there are new points of growth, innovations and the change centres, diverse possibilities and choice situations. Therefore not only are possible, but also different models and images of development of a science are necessary. Critical revision and a new estimation of tradition is «the advance mechanism».

Being guided by the resulted postulates, has ripened necessity to make an attempt partial revision, specification of the settled approach to the characteristic forming branch factors, taking into account, first of all, that (primary) forming branch criteria the subject of legal regulation as set of certain groups of public relations and system of branch («cores») of principles which is built is main, and in due course and gets standard fastening (the unity of such principles and branch norms is dialectic, after all principles receive display in norms, and the norms of the law grouped on the basis of generality of the maintenance, express certain idea, i.e. enter means displays in out of principles), on the basis of available correlation communication with a subject and a method(s) legal regulation of corresponding branch of the law. The system of branch principles is, on our belief, defining, determining on character during a choice of an arsenal of methods (ways, receptions) legal regulation and the direct characteristic of features of their display in the course of regulation of concrete groups of the public relations forming a subject of granted branch of the law.