Lavrinenko O.V., Candidate of Jurisprudence, Senior Lecturer, Donetsk Legal Institute of Lugansk State University of Internal Affairs of E.A. Didorenko

Problems of Interpretation of Essence and the Conceptual Device of a Branch Principle of Unity and Differentiation of Legal Regulation of Labour Relations

Except traditional consideration of a phenomenon of differentiation of legal regulation in structure of one of branch labour-legal principles – a principle of a combination of unity and differentiation of legal regulation of labour relations, in the modern doctrine attempts to prove not only interbranch, but also as a matter of fact the dominating status of the specified principle are undertaken. So, in particular, in the literature it is underlined, that for each branch of the law the unity and differentiation and their combination have the features and it would be incorrect to consider unity and differentiation as a principle because in a similar situation other principles followed apply taking into account data. Thus, there is the «main» principle which is above «others». And on this adherents offer to define unity and differentiation as quality (property) as branches of the labour law and, at the same time, considering a structural role of principles, – principles of the labour law. Specificity of unity and differentiation of the labour law consists in plurality of the bases and in variety of forms of display. Principles of the labour law, being uniform, at the same time are differently shown with reference to various situations. In our opinion, that fact in this case is only established, that all branch principles as a group form certain system, instead of is simple a certain disorder set. From here, by the way, and the standard term – «system of principles of the labour law». And as system it is understood difficult organised whole which contains the separate elements united by various communications and mutual relations. Any system provides two basic components: first, structure – conditionality and «set» concerning independent elements within the limits of uniform process, the phenomenon – and, secondly, interaction of elements of structure. The structure – proof unity of the elements, which law of communication expresses comfort, firmness of relations, it provides storage of integrity, unity of the phenomenon (system, forms its skeleton. Thus the unity of elements provides their interaction among themselves, that is way of existence of such system. Thanks to interaction each element gets the original properties, inherent in system in whole, its functioning without system the impossible. The system of principles of the labour law is objectively caused and subjectively issued internal organisation of the basic and supervising beginnings of the granted branch of the law which essence consists in unity and the co-ordinated interaction of all its compound – principles, and also differentiations of the last on means, to spheres and forms of practical realisation. At the same time, it is necessary to note, what even in such nonconventional and disputable interpretation of essence and value of a principle of a combination of unity and differentiation in the mechanism of legal regulation, quite is proved attention to plurality of the bases and variety of forms of display of differentiation is paid. This phenomenon obviously demands additional studying, first of all – regarding it definitions, characteristics of spheres and realisation forms.

In a science of the labour law to research of the questions connected with the characteristic of a phenomenon of differentiation of legal regulation of labour relations the considerable attention is paid. The unity only then is the present when it is differentiated, and the differentiation achieves the object only when it is uniform. The unity does not exclude, and, on the contrary, provides differentiation. Designated «the dialectic formula» admits overwhelming majority of scientists which were engaged in research of problems of unity and differentiation of legal regulation of labour relations. If to characterise process of working out of the law in sphere of the labour law language of the exact sciences it is necessary to notice, that action of «centripetal» and «centrifugal» forces receives the natural expression in unity and differentiation of norms of the labour law. The concept «differentiation» occurs from the Latin differentia – the divergence also means division, a partition, stratification whole on various parts, forms and degrees. Meanwhile in a science of the labour law to this category various approaches are traced. If to analyse more in detail existing scientific approaches it is necessary to notice, that rather doubtful the statement stated in a science that differentiation of the labour law it is exclusive «legislative division» rules of law on the general and special is represented. It is thought, that the differentiation can and is really carried out in practice often at level not legislative, and first of all certificates accepted on the basis of the law. It is difficult to agree and with conclusions of authors which does not adhere to the full to a rule of unity of criterion of classification of the bases of differentiation, and also resort to the tautological approach in the course of them definitions, mentioning, in particular, about the «social» bases of differentiation. On our belief, «social» can be both «objective» and «subjective» «factors» of differentiation. Besides, in the latter case it is more expedient to speak not about «factors» – too wide on sense and consequently little informative concept which is not reflecting properly an essence of process of differentiation, and, say, about «bases» or «criteria» of differentiation of legal regulation. Interpretation of the maintenance of concept «differentiation» in a case when some modern researchers reduce the characteristic of the last to «divergence» only in «norms of work», instead of as a whole in system of the labour rights and duties, to their maintenance is unreasonably «narrow». It is impossible to agree and with offered in labour-legal doctrine displacement of accent during the characteristic of essence of concept «differentiation» on division, delimitation of «rules of law», instead of as it should be in this case, – volume and the maintenance of the labour rights and duties of participants of the labour relations established by such norms. Synthesising all stated, the concept of differentiation of legal regulation of labour relations can be formulated as established on the certain bases (criteria) and by means of the special norms established legislative or accepted according to them certificates accepted on the basis of the law, difference (compared with the general) in the maintenance and volume of the labour rights, duties and powers of certain categories of participants of labour relations.