Запрет на обход закона в механизме правового регулирования: историко-правовой аспект

Abstract

The aim of the study is to solve a major scientific problem - to determine the legal nature and content of “circumvention of the law”, as well as its place in the system of means of legal regulation. “Circumvention of the law” means a behavior of the subject in which the norm is not respected, not directly, but by various combinations that conceal such actions. The hypothesis of the study is the thesis that modern legislation, judicial and other law enforcement practices, as well as the scientific community, unreasonably avoid considering the phenomenon of “circumvention of the law” in essence, while actively using this terminology without offering an appropriate definition, mixing with other legal institutions, such as “invalid transaction”, “fake transaction”, etc. This situation not only impoverishes the scientific and theoretical apparatus of jurisprudence, but also reduces the effectiveness of legal regulation through a system of legal permits and advantages, levels the protective potential of restrictions and prohibitions. The current need predetermined the need to study the historical laws and shortcomings of the technical and legal consolidation of bypassing the law. Subsequently, the multidimensional nature of the impact of the ban on circumventing the law as a specific human rights tool on all spheres of society and the state is argued. Using a set of general scientific and specific legal methods of cognition, the authors argue the provision on the long evolutionary development of the institution of the ban on circumventing the law, which, nevertheless, did not lead to the formation of stable determinants of its introduction into the legal regulation mechanism. The initial normative basis for countering circumvention of the law, presented by the prescriptions of acts issued in 1922, has been established, which proves the deliberate introduction by the state of a set of flexible human rights structures into the legal regulation mechanism. The functional significance of the ban on circumventing the law in the legal regulation mechanism is proved, its concept is determined. Having considered doctrinal material (both archival and modern), data from judicial and other law enforcement practices, the authors conclude that legislative regulation and the peculiarities of the functioning of the ban on circumventing the law in the legal regulation mechanism were associated with a number of circumstances: the absence of a general theoretical concept of circumventing the law that would explain this phenomenon and its socially harmful nature; the formal uncertainty of the legal concept of “circumvention of the law” and, as a result of the above, the insufficiently logically verified position of the legislator regarding comprehensive opposition to circum-vention of the law. Thus, at the initial stages of the development of the Soviet legal regulation mechanism, the ban on circumventing the law was important as an additional legal guarantee of legality in the field of civil law, having today evolved into an intersectoral legal phenomenon that needs a comprehensive general theoretical study.