Comparative legal studies (Zinkovskiy Sergey, associate professor, PhD Department of the Theory and History of State and Law) Topic 3 Problems of harmonization and convergence of national legal systems and legal cultures.

Factors of the development of the law and of any national legal system: Regularities of self-development, Its interaction, mutual influence, perception of the doctrine institutions, norms, and principles of other legal systems. Often this process manifests itself in the form of reception of the law, that is, borrowing and adaptation to the national conditions of the law originating from the other state.

Reception can take place in different volumes and forms: System reception, ongoing at the level of the legal system as a whole Partial reception, in which the law borrows only some acts, regulations, etc.

We can speak about the following methods and forms of the reception: Reception can be carried out «from below» (the Roman law: first - in the universities, and, much later - the support of the state) and «from above» by the will of the state. Reception of law can be direct, when legal institutions and legal norms are perceived, and indirect, through the perception of religion (when the law and religion still undifferentiated). Reception can be made by own experts, and may be made by engaging of foreign specialists. Special form of the reception is the international unification of the law (the case where under the influence of European Union the differences between the Continental and English law are being erased (?!)).

The rule: historical experience shows that the boundaries of reception of the foreign law have limits beyond which reception loses its rationality and necessity. Comparative law is not used to protect and distribute some kind of a model law, to establish the scale of values, setting up the legal system by rank. The task of comparative law is in the understanding of the alien legal reality.

Legal ways of cooperation and interaction between countries with different national legal systems: important factors. the deepening processes of harmonization of legislations, direct or indirect reception of the legislative acts, the objective dissimilarity of legal systems and cultures.

Legal ways of cooperation and interaction between countries with different national legal systems: way to go. to find «links» between legal cultures so that, in cases of contradictions the legal mechanism acted effectively.

Legal mechanism of conflict of laws provisions: Conflict-of-laws norm differs from the traditional norm of the law. It has two structural elements - the «volume» and «binding». The volume of the conflict-of-laws rules reflects the indication of relations, to which the rule is applied. The binding contains a reference to national legislation, which is to be applied to this type of social relations.

There are various types of bindings of conflict of laws rules: the binding of «personal law» the principle of «the law of the place where the object is» It is used to determine what property can be the object of ownership rights. On the basis of the location of a thing is determined the scope of property rights, the order of their appearance and termination. the principle «the law chosen by the parties of the transaction» the principle of «the law of the place of commission of the act», which includes several other bindings: the law of the place of commission of the contract; the law of the location of the transaction; the law of the place of commission of acts of civil status, the law of the country of the seller; the law of the place of commission of the offence; the law of the court.

Legal mechanism of rapprochement of national legislation: other ways. The rapprochement of the national legislations in the past and today is also manifested through the influence of the laws of one country to the development, adoption and implementation of the laws of another country.

The process of rapprochement of the national legislations means: development of the general course of legal development; the implementation of measures to overcome the legal differences; the adoption of measures to develop common legal rules.

The intensity of convergence: The intensity of convergence depends on the spheres of the social life and the specifics of national legislation. So in the spheres of production, trade relations in the sphere of ecology the convergence is faster, because it reflects a greater degree of homogeneity of the social relations and the fact that they are less politicized. In other areas, such as political, socio-cultural, convergence occurs more slowly and not such a large scale, due to the fact that states seek to preserve their national and historical identity and to ensure the freedom of execution of sovereign power.

Convergence national legislation leads to the establishment of: legal standards; agreed procedures; non-binding norms, etc.

The notions: «The rapprochement of legislation» - is a term meaning the general course of the states to determine the general directions of coordinated development of national legislation, to overcome legal differences and to establish the common legal decisions. In comparative linguistics and in the practice of international relations is also used the term «harmonization of legislation». In the documents and materials of the European Union concept of «rapprochement of the legislation» and «harmonization of legislation» is often used as the same.

Coordinated legal development of the States can be considered in relation to the directions and forms of: determination of the States general policy in this sphere, directions, stages, means of rapprochement; coordination of common approaches, concepts of development of national legislation; adoption of the model legislative acts; unification of legislation when the mandatory uniform legal norms are put into effect

Within each of these areas are usually used the following legal acts: In the first two - programs, plans, model acts and etc. In the third - scientific concepts, etc. In the fourth - general norms, legal standards, etc.

The legal means by which the convergence and harmonization of legislation are achieved: the common legal regime (investment, taxation); the equal scope of rights of the subjects recognized by the states (investors, entrepreneurs); uniform standards (environmental safety, etc.); rapprochement of levels of legal support (pensions, allowances, etc.); mutual recognition of legal documents (diplomas, etc.); usage of the simplified orders of legal actions (acquisition of visas, etc.);

The legal means by which the convergence and harmonization of legislation are achieved: treaties on legal co-operation; the agreements on legal assistance; the procedure of approval of legal acts; creation of a common legal space (for the coordination of the activities of the in the sphere of science, technology and education); the recognition of the international legal documents (declarations, covenants, conventions).