Intersectoral model approach to the distinction between conscientiousness and innocence in Russian civil law

About the authors:

Anton V. Permyakov, Cand. Sci. (Jur.), Associate Professor, Department of Civil Law and Procedure, University of Tyumen; eLibrary AuthorID, permyakov.antony@gmail.com

Dmitry A. Kirillov, Cand. Sci. (Jur.), Associate Professor, Department of Civil Law and Procedure, University of Tyumen; eLibrary AuthorID, kdakda@yandex.ru

Abstract:

The description of conscientiousness in civil law almost coincides with the description of innocence in public law. However, this fact is not systematically studied for several decades, since the study of “alien” categories is not welcome by branch sciences. The situation was resolved only at the intersection of branch science and constitutional law science. This combination allowed going beyond the sector’s subject when considering civil law matters.

Properties of the psyche of the subject, indicating the conscientiousness and innocence, being “extralegal”, are the same for all branches of law. Therefore, the obvious similarity of these phenomena in different branches of law also means their common legal similarity, including within the boundaries of civil law. Meanwhile, one of the logically similar concepts (conscientiousness) is presumed and another is the subject to proof (innocence). Hence, the aim of the research is an accurate differentiation of presumptive conscientiousness from the innocence, which is the subject to proof. The objectives are achieved by creation of simplified models of innocence and conscientiousness as well as their comparison. In this sense, the research is new.

The research methodology is typical for the dialectical one complemented with some elements of other methodological approaches. As for the private methods, special attention is paid to comparative legal analysis, logical analysis, and generalization.

The article substantiates the correctness of the comparison on the basis of constitutional law of the models of private and public law, the choice of tax law as a public law’s branch; the terminological analysis of the categories “conscientiousness” in civil law and “innocence” in tax law as well as other concepts related to these categories is conducted with the use of the generalization method; logical and terminological simplification of concepts for their comparison is carried out; the actual tabular comparison of concepts is made, and the comments are given.

Based on the results of the research, the authors have formulated a number of approaches for the possible correction of legal provisions. In particular, dishonesty of the participants in civil legal relations who have committed a guilty violation of someone’s rights should be assumed.

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