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Public policy on the organization of magistrate's court in Siberia in the second half of the 19th Century .



O.A. AVDEEVA

RSFSR. Are among the specified circumstances crime commission: the person who was earlier committing any crime; organized group; from mercenary or other low motives; entailed causing heavy consequences; concerning the juvenile, aged or the person which is down and out and also concerning the victim who is in material, job or other dependency; the minor connected with involvement in process of implementation of criminal activity; with special cruelty or mockery at the victim; with use of conditions of public disaster; in the all-dangerous way; person which is in state of intoxication; obviously innocent person connected with a slander; the person bailed and who made new prestuple-

ny in the period of the guarantee or within one year after the termination of this term.

Principles of the criminal legislation of USSR and the republics of 1991 introduce concrete amendments in lists of the circumstances commuting and aggravating a penalty. The short story, in particular, is situation according to which fixing of the softening (aggravating) circumstance as sign of crime with the criminal law excludes a possibility of its repeated account when sentencing (Article 42). Besides, the offer on inexpediency of recognition aggravating the circumstances which are not specified in the law deserves attention. Thus, the legislator declares the closed list of aggravating circumstances which in the subsequent finds reflection in the Criminal code of the Russian Federation.

O.A. AVDEEVA

Candidate of Law Sciences, associate professor of the Siberian institute of the right, economy and management

(Irkutsk)

PUBLIC POLICY ON the ORGANIZATION of MAGISTRATE'S COURT IN SIBERIA IN the SECOND HALF of the 19th CENTURY

October 19, 1865. The Provision on enforcement of Judicial charters of 1864 according to which the lowest judicial authority the magistrate's court representing the "individual power of the magistrate" extended in borders of the world district admitted was subject to the royal approval by the monarch. However owing to a raznourovnevost of development of administrative and territorial units the creation of world justice did not accept in Russia of universal character.

During development of the project on reorganization of the all-imperial judicial system the government pursued public policy on establishment of "special rules" of the organization of judicial authority on east outskirts of the state which are characterized by specifics of social and economic and political and legal development. In this regard in the course of discussion of "Basic provisions about transformation of a judicial part" the Decree ordering to make official request of "opinions" of heads of the Siberian administration relatively was issued on September 29, 1862

introduction of "changes and additions in the general bases for the empire".

The arisen variety of approaches to a question of introduction of "Basic provisions about transformation of a judicial part" in the east of the country predetermined creation under the leadership of secretary of state V.P. Butkov of the special Commission designed to establish compliance of the Siberian establishment of 1822 to the level of social and economic and political and legal development of the region and to reveal expediency and extent of carrying out in Siberia of judicial reform.

Having investigated efficiency of the "sudoustroitelny beginnings" operating in the east of the country, the Commission came to a conclusion about need of the organization of magistrate's court taking into account social and economic development of administrative and territorial units of Siberia. Having emphasized insufficient development of means of communication and small number of the Russian-speaking population, the Commission suggested to enter "the special schedule" of magistrate's courts in the territory of the Kolyma, Verkhoyansk, Udsky, Turukhansky regions, Okhotsk,

© OA. Avdeeva, 2006

Gizhig, Anadyr and Kamchatka. Certain difficulties, according to members of the commission, were represented by formation in Siberia of structure of magistrate's court. Replacement of the staff of world judicial authorities in view of absence in Siberia of the sufficient contingent of the persons who had education was problematic. Essential amendments were required to be introduced in a regulation of property qualification of candidates for the magistrate's position.

Taking into account the designated problems the Commission developed the project according to which it was offered to cancel temporarily age and office (length of service) qualifications and to enter appointment of magistrates the First department of the Senate on representation of the Minister of Justice; to make appointment of magistrates from among the local retired officials having education and formally certain income in a type of regular state pension payments and also from the persons having gymnasia education and revenue in the territory of the large trade and economic centers of 50 rubles, the provincial centers — 25 rubles and 10 rubles for all "other places of Siberia", or from the Cossacks who are or not less than three years consisting in the service in "army, civil or stanitsa boards".

Projects of the Commission concerning the organization in Siberia of world justice were submitted for discussion of the State Council, Senate and the ministries during which two opposite approaches were designated. A conservative part of presence expressed opinion on impossibility of realization in Siberia of all-imperial judicial establishments, having referred to small number in the east of the country of the nobility, "making the basis" of reforming of a system of magistrate's court. A liberal and reformatory part of presence, having approved the project of the Commission about creation in Siberia of magistrate's court, suggested to make a number of the amendments providing for economy of the budgetary funds expansion of powers of magistrate's court by means of increase up to 2 thousand rubles of cost of the claims entrusted in a subject of their maintaining and assignment at magistrates of duties of investigators.

The taken-out offers on the organization in Siberia of magistrate's court were subject to consideration on November 25, 1867 at a meeting of members of the Ministry of Justice with participation upolno-

soaked representatives from SEIVK and other ministries. The Ministry of Justice made the decision on expediency of studying opinion on the project from "the Siberian main administration". As a result of the analysis of the project on the organization of magistrate's court of the head of the Siberian administration expressed opinion on expediency of introduction to structure of world judicial establishments in view of development of trade and economic relations of small owners acting through the Siberian merchants.

"Continuation of all works on judicial transformations in Siberia until the final statement of it and introduction in Siberia of Judicial charters" was assigned to the Ministry of Justice. Long-term law-making activities for reorganization in Siberia of the administrative and judicial beginnings came to the end with signing by the monarch on February 25, 1885. "Provisional rules about some changes on judicial system and legal proceedings in provinces of the Tobolsk and Tomsk, Eastern Siberia and the Priamurye region", the judicial establishments of 1864 setting restrictions for introduction in Siberia of Establishment by means of withdrawal from the general legalizations of institutes of magistrate's court and investigators.

Questions of creation in Siberia of magistrate's court received extended coverage on pages of the Siberian and central printing editions. Vigorous activity was developed in Siberia by the local legal society including the representatives of judiciary and "the educated public" interested in reforming of a system of local court. At the end of 80 — the beginning of the 90th of the 19th century the question of creation of magistrate's court was subject to discussion in government circles again. On June 12, 1886 the emperor approved "opinion" of the State Council on "urgent revision" and "the next coordination" of an order of prereform judicial system with "the regulations of court existing in areas in which judicial charters are entered".

Development of the converting project on the organization in the east of the country of local court was assigned to the Ministry of Justice and the Ministry of Internal Affairs. Created by industry departments "Provisional rules about application of judicial charters in provinces and the Areas of Siberia" were signed by the monarch on May 13, 1896

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O.A. AVDEEVA

Creation of world justice was the basis for reorganization of the judicial system. The institute of magistrates was entered in Siberia everywhere except for the Turukhansky region, the Yenisei province, the Verkhoyansk, Kolyma, Anadyr, Peter and Paul (Kamchatka), Gizhiginsky and Okhotsk districts, the Yakut and Seaside areas. Creation of world sites provided the multi-stage procedure. In provinces and areas under the chairmanship of governors, committees which part the vice governor, the mayor, the chairman and the prosecutor of district court were were created. The task of committee consisted in drawing up "assumptions" of world sites and lists of candidates for the magistrate's position. These projects were subject to an obligatory statement in the Ministry of Justice.

Magistrates were subdivided into three categories: local, additional and honourable. Replacement of a position of the local and additional magistrate was carried out by means of appointment as the Minister of Justice from among the persons corresponding to the qualifications established by Establishment of judicial establishments of 1864 in Article 200 — 211, the "general judicial places" extending to candidates. At the same time to the Minister of Justice it was permitted "to allow necessary withdrawals" from the rules existing on the European part of Russia.

Temporary states of judicial establishments of 1896 in eight provinces and the Areas of Siberia entered 173 positions, from them 157 district police officers and 16 additional magistrates. On "chinoproizvodstvo" the local and additional judges treated public servants of the sixth class. The salary of the magistrates consisting on the state providing made 1200 rubles a year. Besides an annual salary, payments "table" and "room" were provided of 500 rubles on each item of expenditure in a year. The general keeping of district police officers and magistrates in Siberia cost treasury 432,100 rubles a year.

Honourable magistrates were appointed the Minister of Justice taking into account requirements which were imposed Article 19 (Part 1, 2) and 21 Establishment of judicial establishments of 1864 operating on the European part of Russia to candidates for the magistrate's position. Thereof on the territory of Siberia

the property qualification providing at candidates for a position of the magistrate of the right of possession of "earth space" or according to estimated "for collection of taxes of real estate" did not extend.

In case of death, a disease or discharge from a position of the local magistrate of his duty were assigned by the General meeting of offices of district court to the additional judge, at his absence — to the magistrate from the neighboring world site.

Civil cases worth claim up to 2 thousand rubles, including legal disputes on "restoration of the broken possession", potrava and "damages to dachas of department of the Ministries of the Imperial Yard and Destinies, Agriculture and State Imushchestv" were submitted to jurisdiction of world judicial establishments. On the basis of Article 58 "Provisional rules..." 1896 cases of tramps — ssylnoposelenets and convicts", provided by Article 452 of the Charter about exiled were subject to consideration of magistrate's court ".

by

According to Article 1260 of the Charter of criminal proceedings of 1896 in limits of the power of magistrates determined the proceedings initiated on the crimes and offenses connected with insult of persons during execution of state service by them with performance of duties by sentries of guard duty and with incidents on railway transport. The sentence of the magistrate was final and was not subject to the appeal if punishment in the form of suggestion, remarks, a reprimand, arrest no more than three days and monetary collecting of not over 100 rubles was specified in a resolutory part of the judgment.

"Provisional rules." 1896 did not provide creation in the territory of Siberia of a congress of magistrate's courts. As higher instance in relation to magistrate's courts district courts acted. Thereof "complaints and responses to non-definitive judgments" magistrates according to Article 63 "Provisional rules." 1896 were subject to permission in district judicial authority. Functions of supervision of activity of magistrate's courts of Siberia were entrusted to at the same time district judicial places.

According to "Provisional rules." 1896 in view of "unevenness of distribution of the population in Siberia, it razbrosannos-

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ti and the relevancy of distances occurring from here between settlements" duties of local and additional magistrates included departure of functions of local investigators. In case of existence in the Siberian cities of several local magistrates the distribution between them "judicial" and "sledovatelsky" functions was carried out by the General meeting of offices of district court.

In detail in Article 4 "Provisional rules..." the system of holidays of local and additional magistrates was regulated 1896. Granting a holiday to local and additional magistrates no more than one month was solved the General meeting of offices of district court. If term up to two months was specified in the statement for granting a holiday, then the matter was submitted to the General meeting of departments of trial chamber. At the indication of more long term the statement was transferred to a discretion of the Minister of Justice.

In the territory of the Turukhansky region, the Yenisei province, Verkhoyansk, Kolyma,

The Anadyr, Peter and Paul (Kamchatka), Gizhiginsky and Okhotsk districts, the Yakut and Seaside areas of function of magistrates, competence of notaries and investigators as Article 5 "Provisional rules." 1896 were assigned to chiefs of local police. In case of "impossibility to assume personally" performance of duties of the magistrate because of existence of other residence cases on territorial jurisdiction were considered by "ranks" of local police force. The term of office of "ranks of police" was limited one year and was followed by the re-election which is carried out "under the agreement of the governor with the prosecutor of district court".

Finishing the analysis of legal regulation of magistrate's court in Siberia in the second half of the 19th century, it should be noted development by the state of the policy directed to stage-by-stage introduction in the east of the country of the all-imperial principles of the organization of world justice taking into account features of social and economic and political and legal development inherent in the region.

D.A. YAGOFAROV

Candidate of Law Sciences, associate professor of Humanities university (Yekaterinburg)

THEORETICAL AND PRACTICAL ASPECTS of CODIFICATION of the RUSSIAN EDUCATIONAL LEGISLATION

In education there was an enormous standard and legal massif practically at all levels now — federal, regional, municipal. The critical volume of this massif actually gets out of the control of legislative rule-making of the federal and regional legislator, not to mention municipal level. It is enough to bring already well-known to researchers of the educational right of figure: nearly 500 legislative and bylaws operate now only on the federal level (by 1999 this figure made 462 akta1). The precepts of law governing any given separate complexes of the relations connected or following from activity in education contain more than in 40 federal laws and over 20 decrees of the President of the Russian Federation. Still

some normative legal acts of the Soviet period work, and separate belong even to the 30th of last century. A little less educational normative legal acts various legal sily2 also work in each territorial subject of the Russian Federation. These data reflect a situation of the beginning of this century. It is obvious that the provided figures changed in even greater side now though, unfortunately, the system analysis of the educational standard and legal massif is still not carried out.

All this, certainly, creates essential difficulties in legal work of executive authorities and educational institutions and initiates conditions for the legal collisions and unreasonable decisions affecting the future of specific people. Thereby sharply the relevance increases

© Yes. Yagofarov, 2006

Michelle Cunningham
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