Морозов П.Е. Роль и значение актов ООН и МОТ как источников трудового права в условиях глобализации

Аннотация: The expression of the nature of a legal notion is its content. The essence is not a mere inner feature of the phenomenon but it also determines the mode of its objectification. In the context of the content of penal treatment the term “measure” is traditionally used which is understood as rather independent means of expression of the answer of the state on commitment of a socially dangerous act. The question of the list of measures of penal treatment remains open in the science of criminal law. Its controversial state is explained by discrepancy of determinative criteria. In some cases their role is fulfilled by the attributes of treatment, more rarely it is emphasized especially. Taking into consideration the analysis of the technical literature, it is possible to make out two objective criteria that are necessary and sufficient to refer these penal means or other to measures of treatment. The role of the given criteria is fulfilled by the most recognizable and easily defined attributes characterizing the essence and the content of the legal institution. Firstly, the basis of an imposition (an application) of measures is the commitment of a socially dangerous act prohibited by the penal statute. Secondly, such measures have an exclusive, original set of restrictions of rights and freedom. As a rule, criminalists estimate only the essential attribute. Among special criteria the content of treatment – restriction of rights – is made out less often and observed inconsistently. The existing situation is explained by the fact that the psychological perception and the social significance of a compulsion are elucidated in the majority of works. However, within the bounds of the law the socially-psychological aspect cannot be cognized deeply enough and should act only as means of the explanation of legal problems. It is the degree of difference of the legal treatment that allows ascertaining the discrepancy of measures in the social area. The realization of penal treatment is not reduced to the imposition and the execution of one of the measures regulated by the law, but it exists in a lawenforcement practice in their various combination. In this connection it is expedient to point to forms of compulsion. The philosophical category “form” acts as a designation of a way of actualization of the substance; of the definitely realized content. Therefore, the form of penal treatment represents a more complex organization of legal reaction including a number of measures of penal nature. Each of measures and forms is distinguished by the specificity of quantity (duration) and quality (nature) of manifestation of restrictions. To summarize, penal treatment is possible to be defined as the purposeful eager activity of the state consisting in compelling treatment based on the penal statute by depriving or limiting of rights and freedom of a person who committed a socially dangerous act. Penal regulation does not always answer to the real nature of legal institutions. Their uniform interpretation can be promoted by fixing a definition of measures of penal treatment. The systematic reforming of the penal statute seems possible only after creation of an integral scientific theory of treatment.

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Abstract: The expression of the nature of a legal notion is its content. The essence is not a mere inner feature of the phenomenon but it also determines the mode of its objectification. In the context of the content of penal treatment the term “measure” is traditionally used which is understood as rather independent means of expression of the answer of the state on commitment of a socially dangerous act. The question of the list of measures of penal treatment remains open in the science of criminal law. Its controversial state is explained by discrepancy of determinative criteria. In some cases their role is fulfilled by the attributes of treatment, more rarely it is emphasized especially. Taking into consideration the analysis of the technical literature, it is possible to make out two objective criteria that are necessary and sufficient to refer these penal means or other to measures of treatment. The role of the given criteria is fulfilled by the most recognizable and easily defined attributes characterizing the essence and the content of the legal institution. Firstly, the basis of an imposition (an application) of measures is the commitment of a socially dangerous act prohibited by the penal statute. Secondly, such measures have an exclusive, original set of restrictions of rights and freedom. As a rule, criminalists estimate only the essential attribute. Among special criteria the content of treatment – restriction of rights – is made out less often and observed inconsistently. The existing situation is explained by the fact that the psychological perception and the social significance of a compulsion are elucidated in the majority of works. However, within the bounds of the law the socially-psychological aspect cannot be cognized deeply enough and should act only as means of the explanation of legal problems. It is the degree of difference of the legal treatment that allows ascertaining the discrepancy of measures in the social area. The realization of penal treatment is not reduced to the imposition and the execution of one of the measures regulated by the law, but it exists in a lawenforcement practice in their various combination. In this connection it is expedient to point to forms of compulsion. The philosophical category “form” acts as a designation of a way of actualization of the substance; of the definitely realized content. Therefore, the form of penal treatment represents a more complex organization of legal reaction including a number of measures of penal nature. Each of measures and forms is distinguished by the specificity of quantity (duration) and quality (nature) of manifestation of restrictions. To summarize, penal treatment is possible to be defined as the purposeful eager activity of the state consisting in compelling treatment based on the penal statute by depriving or limiting of rights and freedom of a person who committed a socially dangerous act. Penal regulation does not always answer to the real nature of legal institutions. Their uniform interpretation can be promoted by fixing a definition of measures of penal treatment. The systematic reforming of the penal statute seems possible only after creation of an integral scientific theory of treatment.

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