The subject of the Theory of state and law and its features. Conceptual-categorical apparatus of Theory of state and law. The method of Theory of state and law, the concept and types. Public and private scientific methods of the Theory of state and law. Dialectical method of studying the state-legal phenomena. Location of the Theory of state and law in the social and legal sciences. Functions of the Theory of state and law and its importance for the formation of a lawyer.
Negotiation theory of the origin of the state and law and its relevance to contemporary practice. The basic doctrine of the origin of the state (patriarchal, psychological, class, organic, etc.) and their significance for legal theory and practice.
The basic theory of the origin of the law. Natural law theory of the origin of law and its implications for legal practice. General regularities of the origin state and law. Different ways of origin of the state in different nations. Eastern and western ways of origin of the state and law.
Type of the state: different approaches to the typology of states. Civilizational and formational approach to the typology of state.
The concept and nature of the state. A variety of definitions of the state. The reasons for the diversity of definitions of the state. Signs of the state. The modern interpretation of the main features of the state.
The functions of the state. Forms of state functions. The classification of state functions. Globalization and its effect on the function of the state. Forms and methods of implementation of state functions. Protection of human rights and freedoms as a basic function of modern democratic state (Article 1 of the Constitution of the RK). The role of modern states in 1 19.11.2012 15:04:08 7
State and law as a form of organization and existence of society. Interrelation of state and law. The relative autonomy of state and law.
The form of the states: concept and elements. Factors affecting the development of state forms. The forms of government of the state and its types. Historical forms of republics and monarchies. Contemporary monarchies.
The form of government and its types. Unitary and federal state: comparative analysis. State legal regime and its types. International and national factors influencing to the development of state-legal status.
The mechanism of the state. The principles of the mechanism of the state activities. The principle of separation of powers in the formation mechanism of the state. The principles of organization and activities of state authorities. Democracy and professionalism in the activity of state bodies.
State bodies and their classification. Legislative, executive and judicial bodies: authorities, check and balances mechanism.
The political system of society: definition, structure. Political parties and their role in the political system of the RK. The role and place of the state in the political system.
The emergence and development of the idea of legal state. The Signs of legal state. The legal state and civil society. The concept, structure and characteristics. Institutions of civil society. The concept of civil society development in RK for 2008-2011.
The principles of legal state and their implementation in the Constitution of the RK. The problems of forming legal state and civil society in the RKK. Supremacy of law - the main feature of Legal state. The problems of securing supremacy of law in the RK.
The features of form of statehood of the RK. The Republic of Kazakhstan - secular, social, legal, democratic and unitary state. (Article 1 of the Constitution of the RK).
The system of law. The structural elements of the system of law and their general characteristics.
The branch of law. Brief description of the main branches of law. The emergence of new areas of law as a reflection of needs of legal practice.
Legal education (upbringing): definition, forms and methods. All-round legal education. General characteristics of legislation on all-round legal education in the RK. The problems of efficiency of legal education in the RK.
The system of law and system of legislation. The grounds for separation of branches of law. Correlation of system of law and system of legislation.
Objective right and subjective right: the definition, differences, mutual interaction.
Normative-legal acts and acts on enforcement of law: the definition, differences and features.
The gaps in law and ways for overcoming them. The analogy of law and the analogy of right.
The interpretation of the law: definition, types according to subjects, methods and scope.
Acts of interpretation of law: definition, features, types. Acts of interpretation and application acts, acts of interpretation and normative legal acts. The importance of interpretation acts of the Constitutional Council of the RK for legal science and legal practice.
Legal consciousness: definition, structure, types. Influence of legal consciousness to the law-making process and law enforcement. The role of legal consciousness in the law-making, application and interpretation of law.
The features of modern legal system of the RK. Influence of traditional legal culture of the Kazakh people and the Roman law to the legal system of the RK. The ways of further development of legal system of the RK.
The definition and signs of legal relations. The preconditions for arising of legal relations. Relationships and public relations. The types of relationships. The objects of legal relations: definition and types.
Subjects of legal relations. Legal personality. The legal capability. Ability to act. The content of legal relations. Subjective right and legal obligation. The rule of law and legal relations. Legal facts and their classification. The importance of legal facts for arising of legal relations.
The legal behavior: definition and types. Lawful and unlawful, legally neutral behavior. Unlawful conduct: definition, features, types. Good behavior: definition and types. Factors determining lawfulness of actions.
Definition, main features of the offenses. Types of offenses. Causes of crime and how to overcome them.
Roman-Germanic legal family.
Anglo-American legal family.
Systematization of legislation: definition and importance. Codification and incorporation: definition, types. The development of codification process in the RK. The development and adoption of new codified acts - an objective imperative.
Law making: definition, principles, types. Law making in the Republic of Kazakhstan: definition, stages. Legal technique.
Article 39 of the Constitution. Rights and freedoms of man and citizen may be restricted by law and only to the extent that it is necessary to protect the constitutional order, public safety, human rights and freedoms, health and morals. What is the purpose of this provision? Give a doctrinal interpretation of this provision, in particular the notion of constitutional order, public safety, human rights and freedoms, health and morals. Give examples from the action of this norm
Article 1
1. The Republic of Kazakhstan proclaims itself as democratic, secular, legal and social state whose highest values are an individual, his life, rights and freedoms. Give a doctrinal interpretation of this norm. Please pay attention to the terms "proclaims", expand the meaning of terms "secular," "legal," "social," "democratic," "unitary".
37. Article 4 of the Constitution of the RK:
1. Acting law in the Republic of Kazakhstan is norms of the Constitution, relevant laws, other normative legal acts, international treaties and other obligations of the Republic, as well as regulatory resolutions of the Constitutional Council and the Supreme Court of the Republic.
2. The Constitution has the supreme legal force and direct effect on the entire territory of the Republic.
3. International treaties ratified by the Republic shall have priority over its laws and apply directly, unless an international treaty specifies that its application requires adoption of the law. 4. All laws, international treaties the participant of which is the Republic of Kazakhstan, shall be published. Official publication of the normative legal acts, concerning the rights, freedoms and duties of citizens, is mandatory requirement for their application.
Questions:
1. Give a doctrinal interpretation of the term "acting law". 2. What sources of law are listed in this article? 3. Which of the sources of law mentioned in this article are outside of the hierarchy of Normative Legal Acts? For what purpose it was done?
Task 4.
The couple decided to file for divorce. At the same time they made an agreement under which the wife Alfia shall be oblige not to re-marry because it will hurt their underage daughter. The apartment shall belong to his wife. Talgat spouse should resign from his job because his wife worked together with him in the same organization. He refused from his rights to apartment, which was purchased in marriage. Sometime after the divorce Alfia had married and Talgat filed a lawsuit for division of mutual apartment. Alfia filed a counterclaim, asking the court do not accept the claim of her ex-husband, as he had violated its commitments and didn’t quit his job. Please evaluate actins of spouses in terms of the subjective and the natural law. What should the Court do – accept the claim of Talgat and share an apartment, or to refuse him, taking into account the arguments of the ex-wife?
Task 5
In one of the notaries of Almaty the marriage contract between a citizen of Iran and a citizen of the Republic of Kazakhstan has been made. The contract included the following points: - Property owned by each of the spouse before marriage is the property of each of the spouses; - Property acquired during marriage belongs to the husband, the wife could own only personal use things and jewelry, which was gifted by her husband; - The spouse should stay at home for three years, she shouldn’t go anywhere and shouldn’t visit her homeland;
- The wife shouldn’t have any children for two years (they should figure out whether she worth to have children in their family); - The spouse must perform all household duties (cooking, cleaning the house, etc.);
The spouse:
- Support his spouse;
- purchase necessary clothing or provide with money for purchasing clothes. In the case of divorce, the children shall stay in the family of her husband and his spouse is not entitled to marry anyone for two years. Give value to the marriage contract in terms of natural law. What rights of wife were violated? Should the court take into account the marriage contract in case of divorce?
Task 6:
Suhoveeva L., a lonely old woman, knowing that she had an incurable disease - cancer of kidneys and seeing ineffectiveness of chemotherapy sessions, has addressed to familiar nurse Lazareva with request to help her “leave from life gracefully” and without suffering. Lazareva, sincerely sympathized the patient and injected her intravenous drug which caused her death. Variant: Lazareva agreed to make Suhoveeva’s request, because she left her own room to her. Expand the concept of euthanasia. In what countries exists euthanasia? Will Lazareva be criminally liable?
The media considers necessity of adopting a special law on gender equality. The aim is encouraging women’s participation in political life, giving them equal with men rights and opportunities, protecting of women’s rights. There is a law on gender equality in Kyrgyzstan.
Assignment: 1. Is there a need for adopting of such law in our state? 2. Is there a discrimination against women in the RK? Refer to the analysis of Art. 12 -14 of the Constitution of the RK. 3. What activities should hold the state and the society to promote and protect women's rights? In what areas we may notice a violation of women's rights?
Task 8:
Under initiative of the General Prosecutor the Supreme Court found activities of 12 religious organizations in Kazakhstan illegal and prohibited. These organizations are “Hizbud Tahrir”, “Aum Senriko”, “Allah Ayta”, etc. 1. In connection with it whether an assertion that there is a religious persecution in Kazakhstan is justified?
2. What are the goals such prohibition?
3. Does this prohibition conform to the Constitution of the RK? At the forum on the Internet the opening of namazkhana in KazNU has been discussed. Give the legal assessment of these proposals. Connect with the Constitution. How this issue should be resolved?