Legal Category “Priority Duty”: Theory, Legislation, Practice

Abstract

The aim of the study is to attempt to form a theoretical model and a technical and legal design of the legal category “priority duty,” by deepening the existing and obtaining new scientific knowledge about the objective determinants of its existence and the influence on state legal development. The subject of the study is the regularities of the formation of the concept, essence and meaning of such a kind of legal duty as the predominant, legal rules that affirm it. Substantive and informative consideration of preferential duties has been carried out, both from the point of view of the doctrine of law, and from the point of view of historical and modern legislation, as well as law enforcement practice. Based on the use of a variety of means of scientific knowledge, the general of which was the dialectical method, as well as the formal legal approach, by analyzing and interpreting the norms of legislation, judicial and other law enforcement practice, the thesis is argued about the presence of signs of parity of preferential rights and obligations, the latter is interpreted from the point of view of doctrinal perception and technical and legal use, definitive, essential and substantive aspects, relationship with generic legal categories (legal duty, legal advantage), the problems of the implementation mechanism, as well as the risks (corruption, discrimination) arising therefrom. Characteristic signs of preferential duty have been identified and relationships have been established both with the special legal status of the person as a whole and with its individual structural elements, namely, with legal responsibility, legal guarantees. The role of priority duty as a means of reducing illegal behavior is shown. Arguments are given proving the presence in the legal system of Russia not only of negative points related to the deviation from universal equality, but also of positive phenomena caused by the need to establish priorities for state legal development. The need for further study of priority duties in the context of the special legal status of the individual and special legal regimes has been proved. The steps taken should contribute not only to improving the effectiveness of the regulation of public relations through a system of legal advantages, but also to reducing discriminatory and corruption risks, the possibility of subjective (private) discretion associated with exceptions to general legal norms and their addition in the form of preferential duties.

For citation: Repev A.G., Senyakin I.N. (2022) Legal Category “Priority Duty”: Theory, Legislation, Practice. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 164–179 (In Russ.). DOI: 10.17323/2072-8166.2022.1.164.179