ПОНЯТИЙНЫЙ И СТРУКТУРНО-СОДЕРЖАТЕЛЬНЫЙ АНАЛИЗ ПРОЦЕССУАЛЬНОЙ ОБЯЗАННОСТИ

Abstract

For the legal characteristic of procedural duties in their content aspect, the concepts of "procedural duty" and "performance of procedural duty" are correlated. Dialectical, herme-neutic and deterministic methods of cognition were of particular methodological importance for the formation of a scientific concept of the content of procedural duty. They made it pos-sible to identify the existing scientific concepts of the definition of procedural obligation. General scientific systemic method of cognition in conjunction with analysis and synthesis predetermined the consideration of procedural obligation as an ideal-model behavior of a person, as well as actually implemented. In this way the "establishment - execution" of obli-gation as legal categories gets different normative content and interpretative coloring. The characteristic of procedural obligation, based on system-structural and system-functional approaches, is proposed. The first one is predetermined by the place of duties in the norms of law, where they are personified in the norms-prescriptions, norms-prohibitions. The classifi-cation of legal prescriptions into general normative and specific (sectoral) ones has been car-ried out. The second approach predetermined the study of the execution of procedural obliga-tion in "movement", through the study of stage-by-stage and private (single) implementation of normative potential. Ideally, the objective of any scientific concept, especially in jurisprudence, is to program the behaviour in which the sectoral objective is achieved. In law enforcement practice, how-ever, there is a different legal result that falls far short of the normative setting and the realisa-tion of the dispositive powers of those concerned. This manifests itself when the court in-stances erroneously failed to take into account the specific factual circumstances of the case in question as a basis for applying a particular part of the legal act's article. Consequently, the court has formally fulfilled the procedural obligations imposed on it by the law, but in fact their fulfilment did not lead to the intended goal, which constitutes the broader justification for the substantive part of the procedural obligation. It is also possible to look at the duty in a narrower way. This is the case when the court has not fulfilled the procedural obligation imposed on it as a formally defined obligation and has not performed the procedural act or has not performed it in full and in an inappropriate manner.