General characteristics of norms of common law
Strengthening of the state power in "Kasymkhan's Laws". The property and non-property relations under "Esimkhans's Laws". "Gengis Khan's Yasa"- a source of a common Law. Features of the religious right(Sharia) in Kazakhs. Legal status of an individual.
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General characteristics of norms of common law
The current Constitution of the Republic of Kazakhstan, as noted, was adopted by referendum on 30 August 1995 and came into force from the day of official publication of results of the referendum on 8 September of the same year. The current Constitution published October 8, 1998.
The Constitution consists of a preamble and 9 sections, uniting 98 articles. The preamble of the Constitution States:
"We are the people of Kazakhstan,
United by a common historic fate,
Creating a state on the indigenous Kazakh land,
Knowing yourself peaceful civil society, committed to the ideals of freedom, equality and Concord,
Wishing to take a worthy place in the global community,
Realizing our high responsibility before the present and future generations,
on the basis of their sovereign rights,
accept this Constitution".
Section I of the Constitution, “General provisions” contains the fundamental principles that serve as the legal basis of the constitutional system - characteristics of the organization, internal and external policy of the state, the legal system, institutions of civil society.
In section II's “Man and the citizen”, with 30 articles, we see an extensive list of rights and freedoms and duties of man and citizen, including some procedural guarantees of rights and freedoms.
In the seven following sections, govern the basis of the status of national authorities, which in comparison with the previous Constitution has undergone significant changes, including a different name. We are talking about the President, the Parliament, which is bicameral now, about the Government, the constitutional Council and the courts, and justice-related institutions (public Prosecutor's office, the investigation agencies and others).
Local public administration and self-government is regulated in sec. VIII, the content of which still bears the imprint of Soviet views on the organization of state power. Read more we will show below in §6 of this Chapter.
Finally, in section IX “Final and transitional provisions” in addition to the provisions of title section provides the procedure for amending the Constitution. According to Art. 91 amendments to the Constitution may be amended by national referendum, which the President of the Republic shall appoint, on its own initiative or on the proposal of the Parliament or the Government. However, the President may transmit the draft amendments to the Constitution in Parliament, who shall make the decision in the manner prescribed by the Constitution, that is, at a joint session of the chambers and by a majority of not less than 3/4 of the votes of the total number of deputies of each chamber. Unlike the Supreme Council of the 1993 Constitution, the Parliament has now exceptional constituent power.
The constitutional reform of 1998 were slightly extended the powers of Parliament on the issue of amending the Constitution. Under the new provisions, if the President rejects the proposal of the Parliament on referenda of the draft amendments to the Constitution, Parliament may enact by a majority of 4/5 of votes from total number of deputies of each chamber. In this case, the President signs the law, or by taking it to a referendum, for the validity of which requires the participation of the majority of citizens eligible to participate in the national referendum. Changes and additions to the Constitution shall be deemed accepted, if they voted more than half of the participants of the referendum.
Not be able to change the provisions of the Constitution of a unitary character and territorial integrity of the state, and the presidential form of government of the Republic.
Law in force in the Republic of Kazakhstan, as specified in 4 tbsp. of the Constitution, are constitutional provisions, related laws, other normative legal acts, treaties and other international obligations of the Republic, as well as regulatory decisions of the constitutional Council and the Supreme court of the Republic. International treaties ratified by the Republic shall have priority over laws and be directly implemented except in cases when an international Treaty, it follows that its use requires the enactment of a law. All laws, international treaties to which Kazakhstan is published. The official publication of normative legal acts concerning the rights, freedoms and duties of citizens, there is a mandatory condition of their application.
The Constitution has Supreme legal force and direct effect on the entire territory of the Republic. This means that the activities of all state and public bodies, physical, legal and officials must comply with its standards and all regulatory legal acts may not be in conflict with its provisions. Direct action of the Constitution means the right of a person to refer directly to its norms in the protection and realization of their interests and the duty of any law enforcement official to follow in the first place its standards.
Seems a good constitutional formula including 4 senior 3, according to which "the state power in the Republic of uniform, carried out on the basis of the Constitution and laws in accordance with the principle of its division into legislative, Executive and judicial branches, and interaction with each other using a system of checks and balances. It allows, first, to emphasize the unity of state power in General, and secondly, coupling it by the Constitution and the law and, thirdly, the implementation of it on the basis of the principle of separation of powers, with the cooperation of authorities among themselves using a system of checks and balances.
Strengthening of the state power in “Kasymkhan`s Laws”
The rise of the Kazakh khanate, associated with the name Kasim - son of Djanibek-one of the most prominent Kazakh khans, which quickly was the process of "collecting land". Kasim was born about 1445:- in the autumn of 1513, when on shore R. Chu has been a meeting between Kasim and Chagataides Saeed Khan, according to their contemporary of Mirza Haidar Dulati, "the age of Kasim Khan exceeded sixty years and was close to seventy". His mother named Jagan-Begim had a sister of the mother of Sultan Mahmud, the brother of Sheybani Khan. As a true son of the steppes, Holy worshipped the time-honoured tradition of subordination to the senior, Kasim Sultan, the example of his father, was at first everything is docile and obedient Chipmunk Khan, says Mirza Haydar.
The result is a steady, good relations with the rulers of Moghulistan Kassym managed to include in his khanate main areas of the seven rivers. Expanded its territorial possessions in the West. Nogai Horde was experiencing at the time of severe crisis, some of the clans and tribes had migrated under the authority of the Kazakh khans and sultans.
Thus, Kasym Khan finally approved its dominance over the vast steppe areas of the Kazakh territory. The borders of the khanate in the South were on the coast of the Syr Darya and included a large part of Turkestan, South-East, they covered the foothills and valleys of a significant part of the seven rivers, in the North and North-East took place in the region of the Ulutau mountains and lake Balkhash, reaching the Karkaraly mountains, in the North-West reached the river basin Zhaiyk. During Kasim Kazakhstan's population has reached nearly one million, and the number of troops up to 300 thousand.
"Kasim Khan became a complete master of all the Desht-and-Kipchak, gained such fame and power which no one had after Jochi Khan," - wrote the famous historian Mohammed Khaidar Dulati. Kasim became known as a skilful diplomat. He established diplomatic ties with the Nogays, the Mongols, Kashgaria and skillfully used his connections with them in the fight against Shaybanids.
The Kazakh khanate when Kasim Khan was gradually drawn into international relations. One of the first States, which entered into diplomatic relations with the Kazakh khanate was Muscovy during the reign of Grand Prince Vasily III (1505-1533). The history of the Kazakh khanate during the reign of Kasym Khan is notable for the fact that in those years the Kazakhs as a separate ethnic community became known in Western Europe: the Kazakhs have left their records Australian diplomat Sigismund Herberstein, who visited several times Moscow ( in 1517 and 1526 gg).
Kasim Khan, according to contemporaries - Binai, Ibn Ruzbikhan, Babur, Changamire, Mirza Haidar, was always fond of good horses, was a great scholar, a distinguished military talent, personal courage and ability to lead others; on the basis of their statements creates the image of a man with high moral qualities worthy of emulation.
Kasim Khan was noticed that the recent increase in inter-clan strife. Some districts have stopped to consider others on the grounds that their khans and beks more noble noble. Small friction often escalated into a big scandal. It was noticeable that inflate strife sultans and bija. Solutions Biy was not always performed.
"If this continues to be so, thought of Kasym Khan of the Kazakhs will suffer the same fate mongols and Shaybanids, which had separated, crumbled bit by bit".
And Kasim Khan decided to make a law requiring people iron discipline. This law was approved and promulgated. The law consists of five chapters. In the first Chapter (Property law) discusses the problem of litigation, land, clan, family relations, as well as payment of a ransom and taxation. In the second Chapter - defined sentences for specific crimes. (Criminal law). In the third Chapter highlights the issues of military service and discipline. Any violation is punishable mandatory depending on the severity of the crime. (Military law). The fourth Chapter is devoted to the questions of the diplomatic service and its ethics.(Ambassadorial law - custom). In the fifth speaks of the celebrations, funerals, funeral, etc. (The law of society).
It was the first law in the history of the Kazakhs, based on folk traditions and folk wisdom. This law is a testimony to the justice and therefore is called "the noble way of Kasym Khan".
The property and non-property relations under “Esimkhans`s Laws”
Esim Khan had to endure even more severe political struggle, the outcome of which was a radical reform of the political system of the Kazakh state. The essence of it was that the primacy of closed elite - Torah was replaced by the primacy of elite open-type - Biy and officers. It happened a kind of Biysk revolution, which limited the political rights of mongols and installed a wide rights to communities and their leaders.
Legally these changes were enshrined in a code of laws - «Есім ханны? ескі жолы»- adopted as a Supplement to the code of Kasim Khan. The law has received wide recognition among people, where norms of Adat were more acceptable than Sharia law into force of animal husbandry. This legal act was defined powers Khan, biys and warriors, and their mutual obligations and rights, in fact it was "Biysk revolution" - as Khan was restricted to the aristocracy and relied on Biy (steppe judges).
Still the Supreme legislative power remained Maslihat. Part of it was composed of all representatives of the Kazakh communities and only the most powerful sultans. Maslihat gathered once a year, mostly in the fall in Ulytau,, Turkestan or near Tashkent.
The weakening of the role of Khan in the political system led to a change in the principle of choice Khan. Although officially the principle of meritocracy remained in force, in fact, the Kazakhs moved to the inheritance of the Royal title until the beginning of the XVIII century Instead ulus system in the early seventeenth century was introduced Ruzova organization, when all Kazakh lands were divided between the three economic - territorial organizations - zhuzes. At the head of the hordes stood bija, the leaders of the most powerful and numerous community groups. Essentially all power was in the hands of rusovich Biy. They were formed and the Council Biy, limited the power of the Khan. Power Biy kept exclusively on the personal authority and Khan, depended on them, could not influence the nomination or another beating.
“Gengis Khan`s Yasa”- a source of a common Law
The great Yasa of Genghis Khan (Yas - Turkic form the Mongolian jasak, literally " law"), the code of regulations promulgated by Genghis Khan in the election of the great Khan on the Kurultai in 1206. Originally represented a codification of the unwritten Mongol customary law and contained mainly the list of punishments for serious crimes. In the next (apparently, in the period of the conquests of Genghis Khan in Central Asia and China) was modified and supplemented. Text of yasa are not preserved. Known only fragments of it in the transfer of Persian, Arabic and Armenian authors of the 13th century.
Structure of Yasa can be divided into five departments:
1) crimes punishable by death
2) the war, its conduct and military device
3) family and family structure
4) meritorious valor
5) various prohibitions.
About the content
Reliable data about the contents of the jars, there is only assumed its components, obtained from different sources. The following list is neither exhaustive nor uniquely accurate and is given in translation in the book of Harold albert lamb (eng. Harold Albert Lamb) "Genghis Khan: The Emperor of All Men", Garden City Publishing, 1927:
· Ordered to believe that there is only one God on earth, the Creator of heaven and earth, that doeth that which is life and death, wealth and poverty, as it pleases him, and possessing the highest power.
· Clergy, doctors and washer bodies are exempt from any taxes.
· Subjects of the Empire forbidden to take the Mongols themselves as slaves or servants.
· Under penalty of death, forbidden to arbitrarily declare himself Emperor, if there are no solutions suggested.
· Smoking the leaders of Nations and clans, subordinate to the Mongols, to wear the honorary titles.
About the war:
· It is forbidden to create peace with every leader, Prince or people that are not obeyed.
· All men must serve in the army, with rare exceptions.
· All men are not involved in the war, have to work for free for the Empire some time.
· To organize the army follows from units 10, 100, 1000 and 10,000 people, so you can quickly gather an army.
· Every warrior gets his weapons from the hands of the immediate commander before the start of the hike. Each warrior must track the status of their weapons, and the captain to check it before the battle.
· Under penalty of death-Smoking soldiers to plunder the enemy and masterstate where the commander has not given permission, and after such approval soldiers, along with officers, have the right to be extracted, if they paid the relevant part of the Emperor.
· Military production should be divided as follows:
3/5 battered army
1/5 battered Jehangir (hike leader)
1/5 went to the Emperor
· For training troops should organize a big hunt every winter, which is prohibited from March to October, killing deer, ROE deer and other males even-toed ungulates and hares, wild donkeys and birds.
· Officers and chiefs, did not perform a task or do not appear at the call of the Khan, to be sentenced to death. If their offense less serious, they ought to attend to the Khan.
About the marriage:
· The marriage act requires that every man bought his wife, and sister marriages are prohibited. Man may marry two sisters, as well as to have several concubines.
· Every seen in adultery is punishable by death, and the guilty can be killed on the spot.
· If two families wish to unite through marriage, but only have minor children, the marriage of such permit, provided that one of the children was a boy, and another girl. In case of death of the children of the marriage contract remains in force.
· Women should engage in property and agriculture. Men should deal only with hunting and war.
· It is forbidden to cut the throat of animals produced for food. The animal is supposed to bind to reveal his chest, and hunter hand should pluck out his heart.
· Allowed to eat the blood and entrails of animals, although this had previously been prohibited.
· Forbidden, under pain of death, to wash clothes or bathe in running water during a lightning storm.
· Stole a horse or an ox, or other equivalent thing to execute, and the body split in two. In less theft be punished, according to the value stolen, the number of blows of a stick: 7, 17, 27, and up to 700. Corporal punishment can be avoided by paying nine times the value of stolen things.
· Under penalty of death forbidden to give shelter, food and clothing runaway slaves. The same applies to anyone who, having met the fugitive slave, has not brought it to the owner.
· Spies, Jesuitical and sorcerers to sentence to death.
Features of the religious right(Sharia) in Kazakhs
The history of our country for many centuries firmly connected with Islam.
Islam has become one of the main sources of formation of distinctive spirituality and culture of the Kazakh people.
The ancient Turks, the ancestors of the Kazakhs, were directly involved in the formation of Islamic civilization and was involved in many of its victories.
The position of Islam was established after the adoption of Islam in the Golden Horde under Khan Berke (1255-1266,) and acceptance of his subsequent khans (Modeming, Uzbek). For example, under Khan Uzbek (1312-1342,) in the Golden Horde capital city Barn, functioned 13 mosques.
Religion has become one of the tools to ensure the unity of society.
Conducted targeted appeals to Islam among the nomads. The preachers were in the steppes of the Volga region and Central Asia, from different parts of the Muslim world.
Among the missionaries there were many representatives of the Sufi clergy. The order of the Naqshbandiyya and yasaviya had great influence on the government and the public consciousness. Under the control of the Sufi communities were mosques, madrassas, without their participation was not voluntary and private ceremony.
A feature of the spread of Islam among the nomadic tribes of Kazakhstan was the fact that the Muslim creed is easily adapted to national traditions and customs of the Kazakh people.
With the formation of the Kazakh nation in the XV century, the introduction of Islam contributed to the strengthening of the Supreme authority of the khans and consolidation of the Kazakh tribes into a single ethnic community.
Residents of the Kazakh khanate adhered to Sunni Islam of the Hanafi mazhab, but in public and private life was a kind of synthesis of Islam with elements of Tengrism, and shamanism.
Kazakh statehood from its inception was based on Muslim law.
Their commitment to Sharia claimed all of the Kazakh khans from Kerey and Zhanibek until the last obshchesibirskogo Khan Kenesary.
Significant influence Islam had on codes steppe of state law adopted by Kasim Khan and Esim Khan.
A significant step towards the introduction of Islam in public life and the practice of law was the code of laws "Zheti Zhargy", approved by the Khan Tauke.
Standards of administrative, criminal and civil rights set forth in this document, was based largely on the provisions of the Sharia. In particular, the laws "Zheti Zhargy" acknowledged the support of the state of the Muslim religion. It is proved by the following provisions: "a Blasphemer, convicted of seven witnesses, shall be put to death with stones..."; "If those who accept the Christian faith, the family is robbed of all his possessions"; "Spiritual Testament made by relatives and the mullahs".
“ Taukekhan`s Zheti-Zhargy”- a source of the code of law”
Normal (the Torah, the ADAT) and Islamic law (Sharia) regulate the legal relationship in society. Attempts to develop a unified legal framework were taken by Kasym and Eskom. But the greatest success in this area has reached Khan Tauke (1680 - gg.), considered to be the author and initiator of drafting and adopting "Jeti-Zhargy".
The exact time of the adoption of these laws is unknown. Consider that at the end of the XVII century, Tauke convened outstanding Biy three hordes (Tole - from Older; Kazybek - Middle; Aiteke - from the Younger), it was they who were the authors of "7 codes".
Why is there a need for the adoption of these laws?
1. With the aim of strengthening the political unity of the Kazakhs, the creation of the Kazakh centralized state. (as you know, unity was necessary in the face of evolving Junggar danger).
2. To develop a common legal framework of the Kazakh society, meets the requirements of time. "Jeti-Zhargy" preserved in the records (not fully - preserved 33 fragment) Russian scientists, the Saviour (1820 ), A. Levshin.
In its structure "Jeti-Zhargy" consists of rules of administrative, criminal, civil law, family and matrimonial relations; sections on taxes, religion, etc. the Basic principles, based on which Tauke wanted to unite the Kazakhs were strict subordination of Junior senior (children - parents, wife, husband; subordinate ruler); the principle of collective responsibility (person in front of genus, the genus for each member). Criminal penalties were based on the principle of Talion (blood for blood), but the death penalty (4) can always be replaced by ransom (kun). "Jeti-Zhargy" reflects the socio-political heterogeneity of the society, talking about articles about different degrees of responsibility of the ruling parties and ordinary people. law yasa sharia kazakh
The bulk of the population was free entity. Only slaves were personal dependence on their owners and could be deprived of life, they usmotreniye Zhargy included the following main sections:
· Land Law (jer Dau), in which he discussed the resolution of disputes concerning pastures and the watering places.
· Family and marital law, where he established the procedure for the conclusion and dissolution of marriage, the rights and obligations of spouses, the property rights of family members.
· Military Law governing the administration of conscription, the formation of divisions and election of officers.
· Regulation on the judicial process, obgovarivaya trial order.
· Criminal Law establishing penalties for various crimes except murder.
· The law on Kuna establishing penalties for murder and grievous bodily harm.
· The law of widows (Gesr Dau)regulating property and personal rights of widows and orphans, as well as commitment to community and relatives of the deceased.
To the institutions of the constitutional order, the Executive and legislative branches of government should include the following provisions:
ь Every adult man should be armed with five weapons, unarmed man is not credible and is considered postolowo (Oh)
ь Khan, sultans and bija annually in may should be collected on the Board Biy, where should decide the most important issues of domestic and foreign policy.
ь Han, sultans, bija, elders and warriors should be collected annually in the fall at the National Assembly.
ь Decisions of the National Assembly and the Council of heads of anyone should not be disturbed until the next National Assembly and Council respectively Biy.
ь Solution of the dispute, reviewed and approved by the Khan is final and not appealable.
ь Each generation must have its own uranium (cry) and Tamga (arms). Tamga is placed on the right rear leg of the cattle.
ь Total uranium for Kazakhs remains “Alash”
ь Litigation must decide the most famous in the country who know the indigenous people's right bija.
ь The elder Zhuz for the Middle Zhuz and Junior Zhuz ( not in name only but M.K) is considered a senior.
ь Disputes over the throne shall have the right (pre-M.K.) to decide for themselves sultans.
ь .The territory of each kind shall be protected by law. One gender is not entitled to occupy the territory of another.
ь The state Treasury livestock owners pay zekat at the rate of one fortieth part of the value of livestock.
ь The state Treasury land owners pay user in the amount of one tenth of the harvest.
ь In support of the sultans, which are with him genus is obliged to provide them with autumn sogum.
ь In support of the sultans, which are with him genus is obliged to provide them with spring sybaga (cooked).
ь Conacami or compulsory hospitality for guests and feed their horses are free.
To the institution of the judiciary and the principles of justice:
ь “Blood for blood, life for life”. As well as “eye for eye, hand for hand, This principle is only performed if the disputing parties - the plaintiff and the defendant does not come to an agreement on the payment of Kuna and ubistvo or mangle was done with immense animal cruelty ( sekten thousand yuandian). (The ancient Roman principle of Talion. M.K. known to many archaic systems of law).
ь In all other cases, fatal penalty is replaced by the Kuna payment by agreement of the parties.
ь The wife is not obliged to testify against her husband, as well as the children against their parents, if their husband or father will commit a theft.
ь .Material support of the court and Biy is imposed on the dispute in the amount of one tenth of the value of the disputed property.
ь The Treasury Khan also paid one-fifth of the value of the disputed property.
ь To investigate crimes are witnessed at least 2 or three people.
ь In the absence of witnesses is applied taking the oath and giving the oath. The oath is accepted only from known popularly as honest and fair people.
ь The oath is not taken from the Complainant, the Respondent, as well as from minors, Kulov, workers, the mentally ill and women.
ь Sultans can replace the witnesses without the obligation of taking the oath.
ь The oath is carried out in the presence of beating or Mullah near the graves of ancestors or other sacred places.
ь In the case of adultery, if the husband had not seen, but only heard about it you can claim on the tradition of the death of both fornicators. But in this case, the required oath of innocence last at least four fair people.
ь Payment of Kuna and particularly valuable Aiya imposed on the whole race of the perpetrator.
ь relatives are obliged to ensure payment of Kuna.
ь Rod gave birth to and nurtured the criminal whose hands were stained with blood responsible for it Perd all the people. Therefore, it is assigned the label of “ broken”(Bzlas) sort and kind whose hands are full of blood (Agya). All relations with this kind cease.
Legal status of an individual.
ь Competence comes from 15 years for males and 16 years for females.
ь Everyone is born free, including cool and born him children.
ь The size of the Kuna for the man of 1000 sheep, for a woman of 500 sheep.
ь The size of the Kuna the white bone (the Torah and the skin M.K) 7000 sheep, if he killed a man. For a woman the white bone Coon - 3500 sheep.
ь If the Sultan killed the skin, or the skin has killed the Sultan in any case, the perpetrator shall be recovered seven-kun, that is, 7000 sheep.
ь The size of the Kuna for a creative person (Asan Oner Yes Bolsa) is doubled, or additional 1000 sheep.
ь The size of the Kuna for the poor, blind from birth, the crippled and the mentally ill - half Kuna (500 sheep M.K).
ь disenfranchised. Deprived of rights for committing a crime is exiled from his clan, he is marked by the cutting of the sexes service. Nobody has the right to take such a person.
ь Claims Kulov on his master will not be accepted.
ь If the husband killed his wife, then kun is not required.
ь If the wife killed the husband kun also not required. It can be subjected to death or banished from the clan, while her face is well plastered with soot.
ь Pregnant women, the death penalty is not applied.
ь For the murder of Kula owner is responsible, but only before God.”
Of course, "Jeti-Zhargy" is the embodiment of the achievements of medieval law, reflecting his age, played a significant role in achieving inter-Kazakh unity.
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