and legal aspects of responsibility310

The article discusses the theoretical range of issues related to the content of social and legal responsibility. The author analyzes the existing points of view with regard to these kinds of responsibility. Particular attention is paid to the analysis of retrospective and positive legal liability. The scientific novelty of this paper is not only a study of the legal phenomenon in the modern Russian legislation and theoretical sources, but also the author's suggestions for further study of these kinds of responsibility.

Keywords: responsibility, social responsibility, positive liability, retrospective (negative) liability

Consideration of any problem in law begins with an analysis of philosophical provisions relating to one category or another. The reason is that the philosophical treatment of the problem provides an impetus to the systematic analysis of the phenomenon.

What is the "responsibility" in the broadest sense of the word? Responsibility is both a feeling and consciousness, and public relations, and incentives and sanctions. Responsibility may stimulate certain activities, and prevent the commission of any action. Analysis of the term "responsibility" reveals that in many languages the term in its content is the same [19: s.703; 8: 717; 3: p.7] i.e. it related to the execution of duties, the debt with the need to account for their behavior.

Current knowledge does not allow to define sufficiently the time since the person has started to act responsibly, that is aware of his obligation to account for his actions, consciously control his behavior. If you still try to give an answer to the question, it seems that the appearance of the border connected with the social responsibility is when and why people began to realize themselves as active subjects of the reality around him.

The term "responsibility" in the science was first introduced by the English materialist philosopher, one of the founders of the theory of the social contract theory and the theory of state sovereignty Thomas Hobbes (1558-1679) in XVII century [6: p. 231-234].

If we turn to the philosophical sciences, the responsibility is understood as the category "reflecting the objective, historically specific nature of the relationship between the individual, the community and society in ^[1]

terms of the consciously imposed on them mutual claims" [25: p.469]. The peculiarity of this relationship is that any person relates to the different requirements in three ways - positive, negative or neutral. In terms of implementation of responsibilities option may be only in two ways - either requirement is met or not. Therefore, social responsibility can arise only in a rather developed society (society), where each is aware of himself of not only as part of a whole, but also as an individual person.

Revealing the essence of social responsibility it is necessary to emphasize the fact that since the XIX century, the term "responsibility" in the philosophical literature was interpreted from the standpoint of the categories of freedom and necessity. This approach will link the responsibility of not only freedom but also responsibility of the person. The subject having free will shall comply with the requirements imposed by society on him (the positive content of responsibility) and to bear the consequences of their failure to perform (negative aspect).

Thus, the treatment of responsibility started to be sharply connected with freedom of will (the ability to make decisions with knowledge of the case), the freedom of choice of behavior. Responsibility is the reverse side of freedom, they are inseparable. The individual, having selectivity determines the nature of his behavior, but he must correlate it with the social demands.

This responsibility should be spoken about in all cases where there is the question of compliance or non-compliance of the behavior of the subject to the requirements that are applied on him by society. It is reasonable to argue that if freedom is the ability to make decisions with knowledge of the case, the responsibility is the need to make a decision corresponding or not to social requirements that are applied on the individual. In reality, the subject, knowing the need, is free to make a decision he sees fit, since he is free to choose behaviors. However, the subject having the right to choose one or another variant of behavior, have to account for his actions and for their consequences. "The need is an objective prerequisite for liability, the subjective prerequisite is the freedom of the will" [3: р.З].

So, in the content of social responsibility unity of the objective (the requirement for the proper conduct of the subject) and subjective (the ratio of a person to the objective requirements of his behavior) are present.

Basing on the works of scientists developing the problem of social responsibility [3, 4, 5, 7, 9, 13], we propose the following definition of the term.

Social responsibility is a kind of public relations in the socio- organized society, based on the right of a choice of variants of behavior based on their will and at the same time accountability in the prescribed form for their actions.

With this definition, the signs follow that characterize the essence of social responsibility.

First, man is a social being. An individual cannot live outside the system of social relations, out of contacts with other people. He is connected by invisible threads with multiple society and therefore his activity takes place in not chaotic, but in a certain order, subject to the laws of social development. Regulation and streamlining of public relations is carried out by certain set of rules, regulations, rights and responsibilities that exist in the society at specific historical stage of its development. Thus, social responsibility based on social norms acts as the regulator of public relations. This thesis is an original methodological basis for understanding the nature, essence and purpose of social responsibility.

Second, the imperative of the society is a respect by the subjects of social relationships of their rights and duties. Therefore, starting the beginning of social responsibility is, on the one hand, the ability of a person to know the requirements of the rules, the rules governing public life, and on the other - to foresee the consequences of their actions and deeds. This situation is due to the establishment of intent (the person is aware and willing to anticipate). Therefore, social responsibility is a kind of public relations in social organized society that determines the obligation of the person having the free will to be responsible in the framework of social norms for their actions.

Third, a person picking version of his behavior in the framework of the claims presented to him by society is making some effort that is the will. The intellect and the will are directly related to the interests of the individual. Under the influence of economic, political, cultural and other relations interests of the individual in society are formed. Moral beliefs, ideological orientation of the individual are prevalent in society relations that shape the identity of the public interest. This conclusion suggests that social responsibility is not only a system of relations between members of society, but also allows you to control the behavior of members of society-

What is the value of the doctrine of social responsibility? It is, first of all, in the system of social relations, it permeates the structure, describing the relationship and interdependence of media relations, at last, covers all forms and acts of responsibility and the basis of their classification. For example, in scientific sources such kinds of responsibility are distinguished: on the quantitative composition of subjects - the responsibility is divided into individual and group, by way of regulation - on the moral and legal; in terms of the time factor, liability is established - for the past

(retrospective or negative liability) and liability for the forthcoming action (promising or positive liability).

If Thomas Hobbes coined the term "responsibility", his compatriot almost two centuries later, in the XIX century, John Stuart Mill (1806— 1873) first used the term "responsibility" only in a purely retrospective form[16: p.27-28]. It was John Stuart Mill, who should be considered as the progenitor of the concept of negative responsibility as a reward for perfect [1: p.27].

Legal liability is one of the varieties of social responsibility. It acts as a subsystem of social responsibility and covers all types of legal liability.

Retrospective or negative liability for many years determined the relationship of responsibility with a vengeance, punishment. This phenomenon can be explained by the fact that this type of liability engaged exclusively lawyers and, of course, they were interested, above all, in the negative of any liability - criminal liability for the criminal act.

Of particular note is that this type of legal liability was dominant in the Soviet jurisprudence. This attention of Soviet scientists in this type of liability was natural, because the legal liability for the offense is the most sensitive issue of legal science. Despite numerous publications on legal liability its definition has caused ambiguous interpretation and in the modern period.

A retrospective legal liability is liability for an offense prescribed by the law, which took place in the past. Hence, the reason for occurrence of retrospective legal liability is an offense, illegal act. The reaction of the state to a wrongful act is a just reward.

Disclosure of the content of legal liability should be conducted only within the law, which defines the offenses and penalties for their commission. Therefore, the interpretation of legal liability should be based on the norms and principles of law, beyond which no crime, no sanctions and, therefore, there should be no liability, no coercion. "In a theoretical study of the problems of liability attempts to go beyond the law, and sometimes even get away from the law as a research subject, to replace the part of the law that defines the grounds and procedures for liability by something different, strange to the law usually cannot give a positive response" [18:

p.662.]

In disclosing the content of the legal liability disputes of scientists are around the interpretation of the term "liability". If we turn to scientific publications where the authors suggested the wording of legal liability, many of them associated " liability with the duty." This approach gave rise to the definition of "liable - then give a report, to report for the crime."^[2] The authors of this approach taking as a basis the dictionaries of the Russian language, where the responsibility is defined as the obligation to answer for the actions, deeds, for anything [19: p.703 8: p.717]. This approach is probably explained by the fact that the content of the terms "responsibility" and "duty" is similar in their semantics (meaning). Supporters of the above approach, argue that the essence of the responsibility lies in the fact that a person has committed a crime, and a legal obligation is to answer, give a report.

Obviously it is not the best way to display the definition of the phenomenon of legal liability, guided by Dictionaries. Disclosure of the content of legal liability for the offense should be based on principles of law, not going beyond them. "Any understanding of the rules - normative, sociological, of course, legal, psychological - the rule of law, as it is expressed in the text of the law is the alpha and omega of liability for the offense" [18: p.658.]. Moreover, Part 2 of Art. 49 of the Russian Constitution states that "the accused is not obliged to prove his innocence."

It seems that the theoretical study of the problem of legal liability will be successful if taking into account not only the physical, but also the procedural rules. We are not talking about splitting the legal liability to "material" and "procedural", when the contents of a liability is the obligation of the offender "to respond to the report and be punished," but the essence of liability of the procedural law is reduced to the same person for protection from prosecution, that is, "the right to keep silence, challenge the charges and the like." Despite the isolation of the substantive and procedural rules governing the most basic liabilities, yet the disclosure of the essence (content) of legal liability cannot be reduced only to substantive rules. Consideration of procedural rules when disclosing the essence of legal liability makes it possible to take into account, firstly, "legal institutions containing safeguards to achieve the objective truth of the case, the rights of a person accused of an offense, the validity of the application of preventive measures (provision), legal ways to eliminate possible errors in the application of state coercion, " and secondly, " a look at the process as something external to the liability reserves out the sight of researchers of the mechanism of implementation of liability, rules defining " forcing technology ", which depend on the implementation and the inevitability of legal liability "[18: p.674].

Proceeding from the fundamental thesis of "there is no legal liability and can be beyond the law in force" one may on the basis of the above offer the following definition of legal liability.

Legal liability is a complex of measures of state coercion applied to a person for an offense, provided by the sanction of a legal norm in the established procedural order.

It is known for many decades retrospective legal liability was dominant in its study. Only in the middle of the XX century positive aspect of liability first attracted the attention of foreign researchers, and later Soviet, and later Russian scientists jurists. Analysis of publications indicates an ambiguous approach to distinguishing positive liability as an independent kind of liability. If one group of scientists implicitly acknowledges the theoretical and practical significance of positive liability, the other group - if does not deny it but does not see it as a practical matter. Thus, V.A. Tarhov believes that positive legal liability "exists, but is not applied" [23: p. 33—34.].

Positive legal liability is interpreted by many authors as a legitimate conduct of a person not committing crimes. For example, according to P.E. Nedbaylo, " a person has a positive liability at the time when he starts to perform his duties, not only when he does not perform or will act against them" [17: p.51 ]. The essence of positive liability is most clearly expressed by N.I. Matuzov. "Positive liability - he writes - in contrast to a negative, is not a temporary and not forced, but the constant (permanent), voluntary and deeply perceived liability of the individual for his behavior in the present and the future, for the proper execution of his legal obligations and civic duty. It involves not only the control of the individual for his actions, but also a positive response to the control of society and state. This is nothing, but a measure of demands of human and to himself "[15: p.208]. These positive judgments on legal liability are contained in the works and of other contemporary scholars [2: p.27; 11: p. 286-287; 20: p. 79; 21: p.78-79; 22: p. 73-75].

So, the "liability in a positive (assertive, active, prospective) plan is seen as an awareness of person of sense and the significance of his actions, their coordination with his rights and responsibilities, his duty in the present and future behavior" [3: p.23].

Where was positive liability brought from as a form of legal liability in the jurisprudence? Analysis of scientific publications has led the author to the conclusion that the idea of positive liability was borrowed from such sciences as philosophy, sociology, ethics, where "social responsibility is seen as the unity of the individual motives and the dictates of duty (in front of other people, society, collective), forms of external and internal control, or the ratio of power and possibilities of man to foresee the results of their actions, recognize his own. Attempts to apply these concepts in jurisprudence engendered the idea of so-called "two-pronged legal liability", according to which in addition to the legal liability for the offense and in close connection with it there is a legal liability of a phased - awareness of duty, the duty to carry out actions corresponding to the nature of the social system "[18: p. 666.].

Supporters of a critical attitude to this kind of liability have repeatedly noted that jurisprudence cannot simply use "ready-made" philosophical concepts and categories without regard to the specific object of its science. It is very difficult to identify its legal characteristics and qualities that would be different from the concept of "responsibility", "good behavior" and so on. It should be noted that such an attempt is made by N.V. Vitruk in the book where he is analyzing scientific articles of various authors on positive liability, distinguishing its qualitative characteristics such as "voluntary form of the duties of subjects of law", "liability of authorities and officials", its connection with the "promotion, stimulation," " preliminary character "with respect to the negative," following public and personal debt "[3: p.24-29]. From this list of quality characteristics it is seen that the mentioned legal phenomena are combined with such categories as "conscientious attitude to his duties", "awareness of the need of lawful behavior," "sense of responsibility" and so on, which indicates that they belong to the sphere of morality and sense of justice.

A very original point of view was expressed by N.V. Vitruk on the problem of positive liability. He writes: "A common feature of the two kinds of legal liability, in our view, is that the subject of law gives an account of his conduct as lawful or unlawful, i.e. is liable for it" [3: p.29] In justifying this approach, the author writes that the behavior of the subject includes the right of self-determination, the stage of fight of motives and decision making under conditions of overcoming negative factors influencing this decision, as well as on the process of implementation of the decision. One aspect of positive liability - says the author - is to follow the public and personal debt, serving one of the major reasons of lawful behavior.

Is law-abiding citizen always in a state of "fight of motives" to take decisions how to act in each case at the request of those laws and regulations that are set by the state in which he resides, or knowingly violate them? It turns out that the obligation to pay taxes, duty to preserve monuments of history and culture, take care to preserve the historical and cultural heritage, to preserve nature and the environment, and take care of natural resources, protect the Fatherland, etc., law-abiding citizen is constantly against the choice of motives how to act ? I share the author’s opinion in that part where he says that the state encourages responsible lawful behavior, using a system of established laws of incentives and rewards. But in this case it is for the most part of the negative liability when the law allows a citizen to be released from criminal or administrative liability, if he fulfills the conditions which the state sets in encouraging standards of criminal or administrative law. O.E Leist is right, stating that "respect for the law is not legal, but a moral category, which is subject not so much legal but other methods of influence on the personality and its spiritual world" [18: p. 667].

Arguing role and importance of positive liability separate publications state that "... the notion of positive liability is wider than the mere duty" [11: p. 286.]. The retrospective liability is only a specific method of providing positive liability [12: p.l 1].

And yet, for all arguments of positive liability, one should admit a more convincing approach of those scholars who argue that in the "theory of positive legal liability all of these tasks are simplified and schematic: in the opinion of many of its supporters, is sufficient to determine the law bans and duties (theoretically), and there is a general responsible attitude towards them (positive legal liability) "[18: p.667]; "In the broadest sense of legal liability, including its positive aspect, the understanding of the specifics of the legal liability is lost and there is need for a new term for what today is included in the concept of liability in the legal sense" [26: p. 316-317]; "The problem of legal liability not only does not fit the theory of legal liability, but generally goes beyond legal issues" [27: p.9]; "Positive legal liability" is unlawful in nature, so it is impossible to treat it as a legal "[28: p.504].

Despite the attractiveness of the theory of "positive legal liability," it appears that it is an artificial theoretical construction, and if you follow the judgment of Marx that "in addition to my actions I do not exist for the law, it is not an object of it" [14: p. 14] A theoretical model of this concept, despite numerous publications needs basic research in which it is necessary to reveal its peculiar legal content.

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• [1] This work was performed with the use of legal reference system Consultant Plus
• [2] E.g., "Legal liability - says S.N. Kozhevnikov, - is the duty of persons to suffer deprivation of certain state-imperious nature of the offense "," Laying the report assumes legal liabilityfor the actions of the subject of the guilty ... ". - General Theory of Law. Lecture course.N.Novgorod, 1993. p. 461,462; "Legal liability is resulting from the offense personally.... Whenthe competent authority, an official or a citizen on the basis of law or in a special form requiresthe offender to report to the commission of the act ...". Theory of State and Law: Textbook /Ed. VC. Babayev. - M .: Lawyer, 2004. - P. 507;