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Peremptory norms of law: examples and application. What do peremptory norms of law contain and establish?

In the methodological and general theoretical sense, the question of the ratio of dispositivity and imperative in the context of economic globalization is considered one of the most important elements of a broader problem. It consists in ensuring the balance of public and private legal principles in the process of regulating civil circulation. Next, we will examine how peremptory legal norms operate today. peremptory norms

General information

Of greatest relevance in the above problem are questions of the necessary limits and scope of economic freedom for all market participants and legislative guarantees designed to ensure the optimal combination and harmonization of public and private interests. The solution of these and other problems will make it possible to re-evaluate the importance that peremptory norms of law have in modern conditions.

Definition

It develops on the basis of analyzed and substantiated methodological and theoretical approaches. Imperative, in essence, implies the existence of categorical orders in the civil legal system. They are prohibitions and positive obligations. These commands are contained in the rules, principles, definitive provisions and regulations. Imperative standards establish legal obligations and formulate the main features. This definition has practical value. It focuses on the normative composition of the entire civil law industry. As its main focus is the identification and study of the specificity of specific groups of norms, patterns and their position in the general system. peremptory norms of law

Features

Peremptory norms of law have their own characteristics. In particular, they include:

  • Prevalence. Peremptory norms act as a sign of objectivity in general. In this regard, they are present in one degree or another in all legal sectors.
  • Status. Peremptory norms have a special influence on the regulation of public relations.
  • Implementation method. Imperativeness is introduced into the system by setting limits.
  • Outward form. Peremptory norms are clearly defined categories: principles, regulations, prohibitions, restrictions.
  • Functions Peremptory norms fulfill protective, security, system-forming, regulatory tasks. They also endow entities with legal capabilities and responsibilities.

In general, imperative guarantees the implementation of subjective civil law, while allowing to highlight the most important categories. Enforcement and adherence to the prescribed regulations is carried out at the expense of the support of state power. It provides for the onset of adverse consequences if a citizen does not comply with the proposed model of behavior. peremptory norms of international law

Form Relations

In civil law, the interdependence of various categories of peremptory norms is established. Their manifestation, in turn, is influenced by the process of discovering and consolidating socially significant interests, which correspond to the needs of society determined by the objective plan within the property turnover. This connection is endowed with special significance.If civil law provides for the protection of interests that do not correspond to existing objective socially significant needs in a particular area, a violation of the civil balance in society as a whole may occur.

the main goal

Peremptory norms imply the use of law as a legal limiter in the broad sense. Such an impact is aimed at protecting the economic freedoms of entities participating in property circulation within the framework defined by law in conditions of high monopolization of these relations. Along with this, peremptory norms contain such prescriptions that ensure the protection of socially significant interests of society and the state in a preventive (preventive) manner. peremptory norms presuppose the application of law

Classification

It can be carried out in accordance with various signs. In particular, classification is possible by:

  • Degrees of certainty. There are relatively and absolutely peremptory norms.
  • The situation in the system. On the basis of this characteristic, special (applied to a particular institution) and general are distinguished.
  • Legal technique consolidation. In this case, it refers directly to the form of presentation (defined by interpretation and clear), external attributes.
  • Regulation method. In accordance with this criterion, norms are distinguished: prohibitions, positive obligations, prescriptions.
  • Action time. In this sense, permanent and temporary norms are distinguished.
  • The presence or absence of a materially binding order of behavior. On this basis, static and dynamic norms are distinguished. The first ones fix the position of the subjects and the main legal opportunities or the mode of their implementation. Within the second category, the description of relations is carried out in their dynamics. At the same time, static provisions can also be classified according to subjective composition. On the basis of this, peremptory norms are distinguished that extend their effect to public legal formations, citizens and legal entities.
  • Result of exposure. In accordance with this sign distinguish between protective and regulatory peremptory norms.

peremptory norms examples

World practice

Over the past decades, the question of the interaction of peremptory and conflict of law norms has been quite acute. In particular, a debate is underway about whether the latter have priority over the former. Such relevance is due to the fact that peremptory norms of international law in some cases exclude or limit the effect of conflict of laws provisions. Thus, the beginning of the autonomy of the will of the parties is limited by the scope of the obligatory statute. In particular, issues relating to the personal law of the participants, the forms of the contract are subject to other conflict provisions. In accordance with the legislation of some states, the recognition of autonomy is accompanied by the need to localize the choice of the law used, as well as a number of other requirements. A clause on public rules excludes the use of a foreign legal system in cases where this contradicts the foundations of the rule of law of the Russian Federation. In world practice, such situations periodically arise in which peremptory norms have great force. The examples given above illustrate far from all cases. Moreover, the above and other existing methods of limiting conflict provisions have their own scope. peremptory norms establish

Special categories

Outside the aforementioned methods are the "super-imperative" orders of a state court. They are not subject to public policy, defined, in particular, in Russian law as the "foundations of law and order." Such prescriptions, however, are capable of limiting in some cases the onset of autonomy of the will of the parties, as well as the manifestation of other conflict provisions.The practical interest in ensuring regulatory regulation of the issue of super-peremptory norms in the international legal sphere was expressed in the Hague Convention. It determined the provisions applicable in a trust relationship. They take place at the conclusion of international trade agreements. In accordance with the convention, its requirements do not create an obstacle to the application of those requirements that must be implemented regardless of the system governing the terms of the contract.

Application rules for the CIS countries

They are very similar to the provisions of Article 7 of the Rome Convention. However, in section VII of the Civil Code for the CIS countries in Art. 1201 rules do not limit the scope of peremptory norms to exclusively contractual relations. This is evident in the following positions:

  • The rules of this section do not concern the operation of peremptory legal norms by which the regulation of the relevant relations is carried out regardless of the prescription to be applied.
  • When using the legal system of a state, a court may apply the restrictive order of another country if it has a close relationship with a specific relationship and if, in accordance with the regime of that country, it should regulate this interaction. Along with this, the authorized body must take into account the nature and purpose of norms of this kind and the consequences that may arise when using them.

Controversial moment

The question of the sphere of "super-imperative" norms that take place in Russian law remains debatable. Some of them exclude the application of directly domestic conflict provisions, referring instead to foreign regulations. The controversial moment at the beginning of international cooperation may be the interpretation of any particular peremptory norm as a limiting rule for the operation of the conflict of law norms of the country's own law. With this approach, the possibility of protecting the subjective interests arising under the influence of the foreign legal system is excluded.


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