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Horodetska I.A.,
Candidate of Law Sciences, Associate Professor
Nizhyn state
University of a name of Nikolay Gogol, Ukraine
To
the question of location of legal regulation of public relations in area of
protection, use and reproduction of animal world in the system of right of
Ukraine
In the theory of law a cross-areal legal systems, areas (basic
(fundamental), profiling (special, specific) and complex [1, p. 305]), the
sub-sectors, the institutes of law are traditionally considered to be the
structural components of the system of law. Despite the complex internal
structure of the system of law the question of the criteria for its dividing into
its component parts remains in the field of scholarly discussion, but the most
common are the unification of law in certain groups on the basis of features of
the subject and method of legal regulation [2, p. 200; 3, p. 62].
Among others, the relations concerning the protection, reproduction and
rational use of natural resources (one of which is the animal world) are in the
vast majority related to the subject of environmental law by scientists. The last,
in turn, is the subject of ongoing scientific debate regarding his place in the
system of right of Ukraine.
In particular, some scientists
believe that environmental law should be regarded as an independent branch of law, arguing that by: the only subject
of legal regulation – social relationships that develop on
behalf of the rational use and
protection of natural resources [4, p. 9-13]; uniform and homogeneous ecological relationships with several
varieties (land, water, forest, mountain, fauna, etc.), which are characterized by
specific features and special legal forms in the form of similar industries environmental
law [5, p. 13-14; 6, p. 10-11]; primary leveraging of legal
structures that differ from those used in
other areas of the legal system of
Ukraine [7, p. 81-86].
However, the position of other researchers is that
environmental law – is a complex area of law. However, the complexity is justified differently.
V.I. Andreytsev examines environmental law as an integrated community
and complex area of law that integrates such components as natural
resources law, regulations on the protection of nature (law of the environment)
and complex area of law – the right of environmental safety [8, p. 4], and in
recent studies author relates environmental law to the formation of
integrated superarea with its sectoral
and sub-sectoral subsystems
[9, p. 24].
However I.I. Karakash, while not denying
the fruitfulness of this conceptual approach to the integration of relations,
believes that nature and resources law and environmental law in the modern Ukrainian
legal system have equal grounds for a relatively independent existence, because
they are different in legal nature, aims and objectives, subject matter and
methods, principles and sources of legal regulation [10, p. 84; 11, p. 12-15].
The authors of the academic textbook of environmental law, edited by
Y.S. Shemshuchenko, explain the complexity of the area of environmental law by
the complexity of its subject matter, which is constituted by four groups of
public relations which are: the relations of protection of the natural
environment; the relations of the use of natural resources; the relations of environmental safety; the relations of the formation, conservation and
management of the ecological network. Distinctive feature of environmental law as a complex area, according to scientists, is the inclusion of other areas of law (land law, mining law, water law, forest law, faunal law and atmospheric law) which are actually its sub-sectors in the system of environmental law [12, p. 13-16,
18].
According to V. Kostytsky, the specific feature
of environmental law as a complex
area is that it involves land, water, forestry, mining, fauna, floral, atmospheric, which either have already formed a certain field of law
(land, water, forestry, mining)
and together form the natural resources
law, or exist as areas of law, the formation of which is
still takes place, and the environmental
security law [13, p. 197-198].
Belarusian
law experts believe that environmental law (as a branch of law) refers to a
complex legal entities, because: it is based on the achievements, theoretical
and normative baggage, available in the arsenal of so-called "classic"
sectors (administrative, civil and criminal law), distinctive features of which
are their subject and method of legal regulation [14, p. 14-15]; includes general
standards and six independent sectors (land law, water law, forest law, mountain law,
protection and use of wildlife law, protection of atmospheric air law) [15, p.
13].
Among the Russian scientists the concepts of "broad" and
"narrow" understanding of environmental law are developing. In
particular, there are arguments in favor of the position whereby all natural resources areas should be included
in the environmental law as a branch of law system (environmental law in the broadest sense),
and one that lies in the delineation of environmental law and
natural resource sectors (land, water, mining, and so on) of
law [16, p. 3-9; 17, p. 29-36].
In view of the above, we can state that the issue of classification of faunal law (that sometimes is
referred as the right of protection and
usage of wildlife) as the sector,
sub-sector or institute of law
lies in the area of scientific debates and is conditioned primarily by
different scientific approaches for
understanding the place of environmental
law and natural resources law in
the system of law.
Thus, further scientific researches should
be focused on clarifying the legal nature of
public relations in area of protection, use and reproduction of animal world as the
object of legal regulation, namely
determining their characteristic
features.
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