D. U. N. Golovkin R. B., Kulakova S. A.

Vladimir Institute of Law FSEP of Russia

Objective regulation and legal counteraction of social-dangerous acts.

Regulation is a difficult and inconsistent process which can be considered from both theoretical and practical points of view. In everyday speech the term "regulation" is applied to the characteristic of different types of activity: regulation of road movement, temperature, private life etc.

Reference publications treat the term "regulation" according to the meaning of the verb to "regulate" in three meanings:

1. To order, to adjust.

2. To direct development and movement of something on purpose to put it in order or system.

3. To bring mechanisms and its parts into a state in which they can normally work [1]. In the other reference materials regulation is interpreted within the meaning of the ordering factor [2].

No doubt that the meaning of the term “regulation” is carried out differently [3] with reference to various branches of knowledge. In our article we comprehend a regulation as process of influence on a person and the result of which is organization of person’s behavior in interaction with other people and outside world .

It is possible to deduce the following signs of regulation from this definition.

At the first point, regulation represents a process. It is known that a process is a chain of phenomena, conditions, changes in development of smth.; it is a set of the consecutive actions directed on achievement of certain result [4]. The process consists of certain stages. There are the following stages in regulation:

а) primary impact on consciousness of a regulating factor (influence of the natural, social and psychological factors, acquaintance with regulatory text, the order of the chief etc.);

b) perception and understanding of the regulating factor (clarifying of the influence and definition of the possible consequences as a result of its account or ignoring in behavior of the person); c) decision-making and correction of the behavior.

At the second point, regulation represents the impact on person’s behavior. There is a variety of impacts on a person: elements of the nature (Thailand tsunami for example), personal natural needs and social determinants. Influence can be purposeful, that assumes the pre-specified result the individual instruction for example. Purposeful impact have influence on subject’s behavior, to which it wasn’t designed, for example, the state reforms in Russia, directed on a monetization of social benefits, spread the regulating effects on the members of the officials’ families. The regulating impact on the person can be either spontaneous or situational, for example, a sharp indisposition.

At the third point, regulation is a result of influence on the person. It is necessary to pay attention to the following: even if the person tries to ignore influence, the regulation still has its effect. Regulating consequences of impact on the person are predetermined. In favor of this conclusion here are some illustrations. For example, if a person doesn't consider a bad weather and doesn't take an umbrella, he will get wet and then will have to take measures: to change clothes or dry up. Other example: after breaking the law it comes the legal liability etc. Purposeful influence can lead the wrong result: the antialcoholic company in fact doesn’t win and also generated an economic crisis, growth of alcoholism and drug addiction.

At the fourth point, the regulation causes relations between people in all spheres of the activities (at work, in private life etc.). The person builds the relationship with other people on the base stereotypes of socialization, education, individual and situational moments. For example, the young man has observed the rule of respecting elderly people since his childhood; as a result he gives a seat in a trolleybus to the old woman even if he is tired.

At the fifth point, the regulation provides behavior of the person with the outside world. Regulation has a unilateral character. For example, the instructions of the person’s behavior in the conditions of natural disasters, can provide only influence on individuals’ behavior. It is impossible to affect the natural phenomena in this aspect of human activity, it is only possible to foresee it according to weather forecast and previous experience.

At sixth point, regulation, as it appears from the definition and considered signs, can be differentiated in types.

The specific structure of regulation depends on the needs of the research. According to the object of influence regulation can be divided into: mechanical, physical, chemical, biological and social regulation.

The most important instrument of the impact on person’s behavior is social regulation and the main place in the field of state-organized society is given to its laws. The majority of public relations are regulated by means of the law, in particular with participation of the state and other government subjects. Due to the specified circumstances, the law and its role in regulation of public relations are quite often overestimated.

Actually, the classification shows that the legal regulation is only a part of social regulations, and the social regulation is only the one fifth of the given system of classification. For the reason of "inclusiveness" of a person in the environment, it is possible to conclude that in spite of our desires, besides the law and other social regulators there are other unpredictable powers over individuals’ behavior. This type of regulations independent from people’s willand more or less objective.

We can conclude that objective regulation is a process and a result of ordering influence of various mechanical, physical, chemical, biological factors (each or in complex) over human behavior.

From here all types of regulating impact on a person can be subdivided in to: objective (mechanical, physical, chemical, biological) and subjective (legal, moral, religious, usual etc.).

The force of objective regulation is in its independent impact on consciousness, on the body of the person, on his physiology and behavior. For example, physical and geographical factors won't give an opportunity for a person to walk on foot to the sea shore during week-end if he lives in the central zone of Russia. For example, the person will never voluntary go to an infrasound source. The infrasound — is the fluctuations of frequency lower than 20 Hz. The overwhelming number of modern people can’t hear the acoustic fluctuations of frequency below 40 Hz. Maximum levels of low-frequency acoustic fluctuations in the industry and transport sources reach 100–110 dB. At the level from 110 to 150 dB and more it can cause unpleasant feelings and numerous jet changes in the central nervous, cardio-vascular and respiratory systems of the human body for instance [5].

The climate is although very important, for example, it is most likely to put on warm cloth, in a frosty weather and to take an umbrella if it rains etc.

Besides natural physical, chemical, geographical, climatic, out other physical factors it is also possible to add some biological ones. For example, a modern Russian person can’t get into a room through ventilating channels. Anatomy causes the fact of low aggression of women to men.

Children couldn’t drive because of their anthropometry characteristics. Therefore, objective factors of regulation can act as essential support or "brake" in effective regulation of law regulation or other public relations.

This conclusion fully concerns legal prevention. Recently the term "counteraction" [6] became wide spread in mass media and legal practice. This term is reflected in a large number of laws and legal acts [7]. It’s range is rather wide, and includes norms of a criminal, procedure, administrative, constitutional law.

The analyses of the term "counteraction" in the legislation gives an opportunity to formulate a definition of juridical (legal) counteraction of offenses [8]. We define this phenomenon as the type of positive legal prevention counteraction showing in the form of legal technological process, characterizing the lawful acts of various subjects in various forms, using the methods and means, including the objective influence on the individual behavior.

Objective counteraction of offenses is not only possible, but necessary, because I helps to put forward legal acting against offences to a new effective level and to increase its effectiveness.

To prove the given judgment we analyzed one hundred and thirty two legal acts providing positive counteraction of the socially negative phenomena, including offenses. This analyze helped us to find out a number of circumstances indicating possibility of using necessarily objective regulation at legal counteraction.

The first. A number of legal norms directly provides a possibility of objective regulation. For example, in the Federal law «About a counteraction of terrorism» clause 3 the «counteraction of terrorism» is defined as an activity of public authorities and local governments on:

а) terrorism prevention, including on identification and the subsequent elimination of the reasons and the conditions promoting terrorism acts(terrorism counteraction);

b) identification, prevention, suppression, disclosure and investigation of terrorism act acts (fighting against terrorism);

c) minimization and (or) elimination of consequences of terrorism [9].

Within the point A) of this clause, possibility of application of objective regulation is accurately seen. For example, as the objective measures of acting against terrorism is possible to limit physical access to explosive, strong poisonous substances, radioactive materials etc. Besides that, minimization and elimination of consequences of terrorism are directly connected with mechanical (analysis of blockages), chemical (deactivation) and biological (rendering of medical care) regulation.

The second. It is an indirect possibility of application of objective regulation in the mechanism of legal counteraction of offenses. For example, the clause 22 of the Moscow city law «About physical culture and sport» is called «Prevention of the application of doping means and (or) methods in the city of Moscow», but thus it doesn't contain information of real counteraction measures:

1. In Moscow there is anti-doping promotion directed on using doping means and (or) methods.

2. Authorities and city sport federations provide the counteraction in using of doping means and(or) methods by sportsmen, employees or members of in any organizations in the state system of physical culture, sport and the members of the sports national teams of Moscow city and also using of doping means and measures during official city sport activities.

3. The order of counteraction activities applicants doping means and (or) methods confirms by authorities [10].

At the same time, as it is known anti-doping control is widely applied that as an objective measure of prevention.

The third. In some rare cases, it is difficult to provide objective regulation with legal acts. The similar definition of "counteraction" in the Decree of the President of the Russian Federation «About the Presidential Commission of the Russian Federation directed to counteraction of the attempts of falsifying the history against state interests of Russia» where the necessity to act against the falsification of history and to create the Commission of the President of Russian Federation directed to prevention of falsification of history against state interests of Russia [11] is fixed. In other words, in this decree speaks about all counteraction of falsification of history conducted only to consider the decree literally, it is possible to reduce the formation of the specified commission.

The fourth. In some legal acts, the objective counteraction is considered as some separate measures. For example, in the Federal law «About the counteraction of legalizing (washing) of income received by a criminal way, and terrorism financing» where objective regulation of counteraction is expressed by 4 measures, Pointed out to act against legalization (washing) of income, received by criminal way and terrorism financing.

These measures are:

Compulsory procedures of internal control;

obligatory control;

prohibition of informing the clients and other persons about the measures of counteraction of the legalized income received by a criminal way, and terrorism financing (in an edition to the Federal law from 30.10.2002 N 131-FZ) [12].

According to clause 41 of the federal law «About drugs and psychotropic substances» the following directions of objective counteraction are established:

prevention of drug distribution, illegal consumption and drug trafficking;

treatment and rehabilitation of patients with drug addiction;

drug trafficking suppression.

Clause 26 of the law «About establishments and authorities executing criminal punishments in the form of imprisonment» [13]. Obliges the staff of criminal executive system irrespective of their post, the location and the time of day objective carried in case of direct detection of the events menacing to personal or public security, to take measures to rescue people, prevention and suppression of offences, detention the suspects and the report about this to the nearest law-enforcement body of Russian Federation.

The fifth. Among the analyzed legal acts there are some that directed to counteract the offenses connected with objective regulation. For example, clause 1 of the Federal law «About environmental protection» [15] contains counteraction measures of ecological offenses, which are negative from the point of view of this research. Therefore objective counteraction to this type of offenses should "reflect" the offenses. For example, as it is provided in this law, that there is the environmental control including the system of objective measures, directed on prevention, identification and suppression of a violation of the law in the field of environmental protection, ensuring observation of the requirements by the subjects of economy and other activity, including standards and normative documents in the field of environmental protection.

Let's bring some results.

At first, the counteraction of offenses designated in legal acts is one of the ways of positive prevention, because models of negative prevention are fixed mainly in guarding rules of law. Therefore, fixing the examples of the forbidden behavior in a law is a positive counteraction from the state. In other words, the fact of fixing of any counteraction in legal rules and also activity provided by implementation of these norms represents activities for counteraction social phenomena.

Secondly, it is expedient to allocate direct and indirect interactions of objective regulation of legal prevention. Direct counteraction is shown as combination of various mechanical, physical, biological, and other unsocial means, for blocking and overcoming the negative actions. Indirect prevention of isn’t directly directed on realization of the purposes of this type of prevention, but it appears objectively.

Thirdly, according to the analyzed legal acts, the subjects of positive prevention can be the state, state’s authorities, officials, certain citizens and their organizations, all of them can apply both subjective and objective counteraction of offenses.

Fourthly, the objective means of prevention are any material and non-material phenomena with the help of which the counteraction is carried out/to prevent the state. From the point of view the legal regulation can be designated as lawful, that provided by law and being used for their realization.

Fifthly, objective regulation shouldn't contradict legal counteraction to offenses, but also should be an effective tool for its providing and increasing its quality.

References:

1. Ojegov S. I. Russian dictionary. Изд.10. M: Soviet encyclopedia, 1973. Page 620.

2. Distance of Century. Explanatory dictionary of great Russian language. Т.4. M: M. O. Wolf edition, 1882. Page 89; Dictionary of the modern Russian literary language. Т.12. M - L.: 1961. Page 1111-1112

3. Golovkin R. B. Concept of regulation and its feature//Moral and legal regulation of private life. Vladimir, 2004. Page 7-18.

4. The sociological encyclopedic dictionary / Under the editorship of G. V. Osipov. M, 2000. Page 276.

5. Influence of an infrasound on a brain of the person. Behavior of the person under the influence of an infrasound. http://www.rumbur.ru/rubrics/nature/510/. Appeal to a resource: 22.01.2012.

6. Definition Constitutional the Vessels Russian Federation from 01.12.2005 N of the 519th "About refusal in acceptance to consideration of the complaint of the citizen of the Pigeon of Sergey Aleksandrovich on violation of its constitutional laws by the subparagraph 1 of point 1 of article 7 of the Federal law "About counteraction to legalization (laundering) of the income received by a criminal way, and terrorism financing"; Definition Constitutional the Vessels Russian Federation from 08.04.2004 N 91 "About refusal in acceptance to consideration of the complaint of citizen Globa Igor Aleksandrovich on violation of its constitutional laws by a part of the second article 6 of the Federal law "About perpetuating of the Victory of the Soviet people in the Great Patriotic War of 1941-1945" and article 1 (point 2) of the Federal law "About counteraction of extremist activity", etc.

7. The federal law from 07.08.2001 N 115-FZ (an edition from 17.07.2009) "About counteraction to legalization (laundering) of the income received by a criminal way, and terrorism financing" (GD FS Russian Federation 13.07.2001) (with amendment and additional is accepted, come into force from 06.12.2009); the Federal law from 06.03.2006 N 35-FZ (an edition from 30.12.2008) "About counteraction to terrorism" (GD FS Russian Federation 26.02.2006) (with amendment and additional is accepted, coming into force from 01.01.2010); the Federal law from 25.12.2008 N 273-FZ "About corruption counteraction" (GD FS Russian Federation 19.12.2008 is accepted); the Federal law from 25.07.2002 N 114-FZ (an edition from 29.04.2008) "About counteraction of extremist activity" (GD FS Russian Federation 27.06.2002 is accepted); the Federal law from 08.01.1998 N 3-Federal Law (an edition from 17.07.2009, with amendment from 18.07.2009) "About drugs and psychotropic substances" (GD FS Russian Federation 10.12.1997 is accepted).Глава VI. Counteraction to illicit trafficking in drugs, psychotropic substances and their precursors, etc.

8. Golovkin R. B. Technology of legal counteraction//Messenger of the Vladimir Institute of Law Federal Service of Execution of Punishments of Russia. No. 1 (3)/2011. Page 101-115.

9. Federal Law «About counteraction of terrorism» from March 6, 2006 of N 35-FZ.

10. The decree of the President of the Russian Federation from 15.05.2009 N 549 "About the Commission at the President of the Russian Federation on counteraction to attempts of falsification of history to the detriment of interests of Russia" (together with "The provision on the commission at the President of the Russian Federation on counteraction to attempts of falsification of history to the detriment of interests of Russia".

11. Art. 4 of the Federal law from 07.08.2001 N 115-FZ (an edition from 17.07.2009) "About counteraction to legalization (laundering) of the income received by a criminal way, and terrorism financing"

12. Chapter VI. «Counteraction to illicit trafficking in drugs, psychotropic substances and their precursors»//the Federal law from 08.01.1998 N 3-Federal Law (an edition from 17.07.2009, with amendment from 18.07.2009) "About drugs and psychotropic substances"

13. The law Russian Federation from 21.07.1993 N 5473-1 (an edition from 25.11.2009) "About establishments and the bodies executing criminal punishments in the form of imprisonment"

14. The federal law from 10.01.2002 N 7-Federal Law (an edition from 14.03.2009) "About environmental protection" (GD FS Russian Federation 20.12.2001 is accepted).