对“法律保护”现象的理解问题

Mikhail Osipov
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引用次数: 0

摘要

如何理解“法律保护”现象,是现代国家法学理论面临的紧迫问题之一。本文的研究主题是作为法学现象的法律保护的结构模式和功能模式。在研究过程中,取得了若干具有一定科学新颖性的成果:提出了法律保护的概念,建议从客观和主观两种意义上加以考虑。在客观意义上,法律保护应被理解为一种保护性法律规则制度,在发生非法行为时确定保护措施(保护和恢复被侵犯权利的方法)和责任措施(惩罚)。从主观意义上讲,法律保护应理解为在发生违法行为时制定和实施保护措施和责任措施的过程。本文还分析了法律保护的主要构成要件,包括:法律保护的主体;法律保护的主体、法律保护的原则、法律保护的方式、法律保护的机制。此外,还审议了法律保护的功能和影响其效力的因素。
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To the question of understanding the phenomenon of "legal protection"
The problem of understanding the phenomenon of "legal protection" is one of the urgent problems facing the modern theory of state and law. The subject of the study, the results of which are presented in this article, are the structural and functional patterns of legal protection as a phenomenon of legal science. In the course of the study, a number of results were obtained that constitute a certain scientific novelty: the concept of legal protection was given, which is proposed to be considered in two senses: in the objective and subjective. In an objective sense, legal protection should be understood as a system of protective rules of law that establish protection measures (methods for protecting and restoring violated rights) and measures of responsibility (punishment) in the event of unlawful acts. In a subjective sense, legal protection should be understood as the process of establishing and implementing protection measures and liability measures in the event of unlawful acts. Also in this article, the main elements of legal protection were considered, which include: subjects of legal protection; subject of legal protection, principles of legal protection, method of legal protection, mechanism of legal protection. In addition, the functions of legal protection, and factors affecting its effectiveness, were considered.
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