The peoples of the Volga region at the present time. Customs and traditions of the peoples of the Volga region: distinctive features of local residents

Question No. 1

Judicial authorities.

The court consisted of 12 people.

State

Patrimonial

Church

State

1. Murder - murder.

2. Robbery.

Patrimonial

Church

2. Mistake – rape.

The bodies of the church court were the highest church authorities: metropolitan, bishops, abbots.

Church senoria arose. Church feudal lords: bishops, abbots, began to have immunity => received the right to judge.

Question No. 2

Legal proceedings according to Russian truth and church statutes of the 9th-12th centuries, types of evidence.

Legal proceedings according to Russian truth:

The oldest form of judicial process was the community court, whose members had equal rights and responsibilities in legal proceedings. The parties remained competitive for a long time Therefore, the process in Ancient Rus' is called adversarial (less often, accusatory). It has such distinctive features as the relative equality of the parties and their activity during the consideration of the case in collecting evidence and evidence.
The reasons for initiating the process were complaints from the plaintiffs, the capture of a criminal at the scene of a crime, and the fact that a crime had been committed.

The trial in Ancient Rus' was divided into three stages and began based on a complaint from the victim.
The first stage was called the call. In a public place, the victim reported a crime, for example, the theft of his property. The missing property was described in detail so that it could be identified among other property.

Then came second judicial stage - arch. The one from whom the loss was discovered had to indicate from whom he purchased the stolen item. The “scavenger hunt” continued until a person was found who was unable to explain how he got the stolen item. This man was found guilty.

If the second stage was not successful, they moved on to the third stage, called chasing the trail. It was a search for a criminal and a search for evidence. Such a search was carried out either by the victim himself and his relatives, or by community members.

During the trial, the parties proved their cases with the help of judicial evidence.

Types of evidence in Kievan Rus:

1. The accused’s own confession.

2. Hearsays (hearsay witnesses who heard something; public defender) and vidoki (eyewitnesses of the fact).

3. Ordeals (judgments of God, testing by iron and water).

4. Oath (used in the absence of other types of evidence, it consisted in the fact that some thing was placed near the cross, the text of the oath was pronounced. The oath was confirmatory (the plaintiff probably confirmed) and purifying (the defendant)).

The process was oral and public, so nothing was said about the provision of written evidence.

Legal proceedings under church statutes:

Penance evidence was used.

Penance was later combined with state punishment. S.V. Yushkov believed that both self-mutilation and church imprisonment were used in church punishments. Until recently, issues of church court were not the subject of study at all; all this creates certain difficulties.

All crimes related to morality and religion were assigned to the area of ​​the church and episcopal courts. Minor cases were considered by the bishop's court, and if the matter was serious or concerning, then the episcopal court was considered. The body was one-man. The Church considered “non-marriage” matters, i.e. illegal, from a church point of view, marriages.

Russian practice, unlike Byzantine practice, recognized children from such marriages as part of the inheritance. Questions that arose regarding the spiritual will were also subject to the church court.

Question No. 3

Peculiarities of execution of punishment according to the sources of ancient Russian feudal law.

There were various forms of responsibility for the laity and for the clergy. At the same time, the very nature of punishment from the point of view of canonical church law had its own characteristics.

The peculiarity is that from the point of view of the church it is not punishment, not retribution, but healing the painful state of the soul of the sinners themselves.

Death penalty and corporal punishment indeed were not mentioned in Russian Pravda. However, according to the chronicles they existed. Long before the advent of Russian Pravda, the custom of deciding dispute in a judicial duel - field. Whoever wins in battle wins the case. Russian Truth was silent about the fact that this custom was preserved later, until the 16th century. There is an opinion that these gaps are not accidental and are associated with the influence of the clergy, who protested against the preservation of pagan, “native” traditions in the legal system of Rus'.

Question No. 4

Question No. 5

Question No. 6

Question No. 7

The procedure for sentencing and execution of punishments using the example of Novgorod and Pskov.

In the new form of the process, the delivery of the defendant to court did not depend on the plaintiff - these functions were assumed by the state. The week's worker took special invitations; bailing was prohibited. The weekman had to arrest the defendant himself, this especially concerned dashing people, i.e. repeat offenders.

To find dashing people, “general searches” were ordered - interrogation of witnesses. It was also used to determine the reputation of witnesses. This was carried out in the absence of the prince himself. In case of disagreement in testimony, the case was decided according to the testimony of the majority. Such an investigation was mandatory evidence - on charges of theft, theft, slander. The same week workers were entrusted with torturing such a dashing person. In the event of a slander, a confrontation between the agreed upon and the stipulated. If the person who slandered him renounced his words in the presence of the accused person, then he was subjected to torture, and a “house-wide search” was ordered on the accused person. In addition to the “general search”, a type such as examination and inspection of the crime scene was used.

These actions were carried out by nedelschiki and tselovalniks (they kissed the cross, confirming the honesty of their words).

There was an inspection of hayfields, damage to boundary signs, places of arson, bodies and corpses. New types of punishment have appeared:

1. Throw in jail

2. New types of executions.

Question No. 8

Judicial system in a single Russian centralized state (14-16th centuries).

The Russian centralized state mainly took shape in the mid-16th century. The Moscow principality was surrounded by Russian lands: Rostov, Novgorod, Yaroslav, Ryazan.

Ivan III turned the principalities into states. There were no strong connections with him yet. During the reign of Ivan III, his policies indicate that it was no longer an appanage Moscow state, but a national Russian state.

1497 - uniform application of law.

"Code Code 1497":

State judicial bodies:

1. Central

2. Local.

The Central ones included:

1. Grand Duke.

2. Boyar Duma.

3. Good boyars.

4. Orders.

1. Courts of governors and volosts.

Cases could move from lower to higher authorities based on the report. There could be both a plaintiff's complaint and a defendant's complaint. Grand Duke considered cases as a court of first instance - especially important cases (only some had the right to go to the prince's court; this was a privilege. There were tarhan letters, whoever possessed them could go to the prince's court).

And it was also the highest court of appeal in relation to the lower courts. Appeal – review of the case. At that time, all instances were appellate and always reconsidered cases.

Therefore, according to the Grand Duke’s broadcasts about independent consideration of the case, they usually ended with the words: “Or whoever I order.”

The link between the Grand Duke and other authorities was Boyar Duma. The body was administrative, but it consisted of introduced boyars, i.e. those who were introduced into the palace of the Grand Duke and occupied the highest court position.

The Boyar Duma dealt with disputes about localism and claims of service people who did not enjoy the right to work for the prince. The Boyar Duma was the highest court in relation to the local court.

The bulk of court cases were considered orders. They were the most productive link judicial system Russian state.

In places: governors and volosts. To carry out administration in the city (governors), and in the volosts - volostels. Governors and volostels were appointed by the prince from among the boyars for a certain period of time (usually one year). But they subsequently did not receive subsidies from the Grand Duke, but received feed. Feeding system from the local population.

The desire of Code of Law 1497 to centralize the judicial apparatus had a special impact on the localities. We established 2 types of feedings:

Without a boyar court.

With the boyar court.

The governors and volostels had the decisive right with the boyar court of the final decision. And without the boyar court, they did not have the right to make a final decision, so they had to ask for help from a higher court.

CONCLUSION: a judicial system is being built.

The next link was spiritual courts. The spiritual courts were divided into courts:

Bishops' courts (judge - bishop).

Monastic courts (judge - abbot).

Just like the feeders, bishops and abbots received remuneration from the population under their jurisdiction. The differences are that the ecclesiastical courts dealt primarily with clergy cases, but also with other cases.

Important criminal cases (murder or red-handed robbery) were tried by state courts, although they were assigned to spiritual courts. In addition, it continued to exist Local (general) court– considered cases when one of the parties was a representative of the clergy or a peasant living on the territory of the monastery, and the other did not belong to the spiritual sphere. 59 art. "Code of Law".

Patrimonial and landowner courts. The competence of these courts was determined by the receipt by the owner of the estate or the landowner of immunity to judge his subordinates. The most important cases - murder and red-handed robbery - were removed from the jurisdiction of these courts. And although they were committed on the territory of a patrimony or estate, they were considered by state courts.

The trial of black peasants was carried out by elected judges.

Cases were dealt with in the presence of the “best” representatives of the local population - centurions, elders and representatives of the estate.

State judicial bodies were the highest authority. At the turn of the 15th century, the formation of the state apparatus, including the judiciary, began. The emergence of a centralized justice system.

Question No. 9

Question No. 10

Question No. 11

The judicial system during the period of the estate-representative monarchy (1549 -1653).

The end of the 16th and beginning of the 17th centuries was the period of the dawn of the order system. More than 90 central bureaucratic institutions of various kinds. Well-organized structure and staffing.

At the head of each order was a chief - a judge. Ambassadorial, weapons, streltsy, foreign, apothecary orders. The judges of the orders were appointed by the Boyar Duma. These were duma or okolnichi nobles - the top of the feudal class. We can talk about the birth of the nobility.

If in 1613 the Duma clerks headed only one third of the orders, then in 1680 almost four-fifths of the orders.

With the creation of orders, extensive paperwork also appeared, which was subject to certain clerical rules. The most literate were the church ministers - they were appointed assistants to the orders.

Many orders had clerks who were responsible for office work. The clerks issued orders, like judges, and drew up sentences, and if a report to the king was required, they wrote a “report.” According to the king, the clerk made “notes” and “resolutions”. Here the orders included paying wages.

They were divided into tables and tables. Senior clerks, together with clerks, carried out the main activities. And the younger ones carried out the alteration of documents. The orders also included messengers, watchmen and other persons. The largest orders were divided into tables and rises.

Most of the orders were in the Kremlin.

Investigation and search are becoming increasingly important. During this period of time there was quite a complex system bodies administering justice, along with state bodies, there were church and patrimonial justice bodies. State organs were also divided into central And local.

TO central treated the king. Judged the top. The lower classes were not allowed to address the king. The Tsar, as a judge, judged together with his boyars. Gradually, the sovereign's judicial activity narrowed and he considered only exceptional cases. But the activity has expanded Boyar Duma. In the Boyar Duma, it was considered by the Judicial (Execution) Chamber.

Canon law. The Church in its activities relied on a whole system of norms of canon law.

The community of property of the spouses was established, the power of the husband over his wife and the father over his children. The law prohibited a husband from disposing of his wife's dowry without her consent. The wife retained a dowry and was provided with part of the property.

In the mid-16th century, church authorities banned secular books by their regulations, so a church system of punishments appeared, namely the imposition of repentance (penance). Imprisonment in a monastery was one of the punishments.

The process was oral. The first word was given to the plaintiff, who outlined his demands, then to the defendant, then again to the plaintiff => adversarial process.

Changes in evidence: such evidence has come out for all types of ordeals. The order of 1556 was replaced by the kiss of the cross, special meaning received written evidence.

Proof:

1. Kissing the cross (an oath sealed with a religious oath).

2. Hearsay and witnesses.

5. Search (interrogation of devious people in controversial circumstances of the case; carried out by a “detective.” Testimony of devious people was given under oath and recorded and recorded).

6. Written evidence (various types of contracts, receipts, obligations, lots were used - for an amount of at least 1 ruble)

A new concept has emerged: “term” limitation period" If there was no evidence during the trial, then the court gave a deadline for the presentation of evidence and documents => the trial could consist of a number of meetings, separated by a significant period of time, entered into the protocol - the “court list”.

When new evidence was presented, a new verdict was handed down. The review was made by special judges. A “correct certificate” was issued.

If after the issuance of the “letter” new circumstances were discovered, then the offended party had to pay triple the price of the claim and was subject to punishment.

If he slandered, he was subjected to the same punishment that the accused should have been subjected to.

Question No. 12

Question No. 13

Question No. 14

Question No. 15

Question No. 16

Formation of a new judicial system during the period of consolidation of absolutism (late 17th century - first half of the 18th century).

Question No. 17

Question No. 18

Question No. 19

Question No. 20

Question No. 1

The judicial system of Kievan Rus (state, patrimonial, church).

Judicial authorities.

In Kyiv there was no division into civil and criminal law, there was no such thing in the process. Those cases that were recognized as civil or criminal were considered equally.

During the period of early feudalism, the judiciary did not exist as separate bodies. Both in the center and locally, judicial functions were performed by authorities. The judges were princes, mayors, and volosts.

Judicial functions were performed by community courts, but their influence was not great. They extended their jurisdiction only to the rural population.

The court consisted of 12 people.

Later sources ("The Long Truth") say nothing about the courts.

As boyar land ownership developed, boyar immunity developed, and now the boyars also began to assume judicial functions over their dependent population.

The establishment of Christianity in Rus' also led to the development of church jurisdiction.

There were 3 branches of jurisdiction:

State

Patrimonial

Church

State

1. Murder - murder.

2. Robbery.

Some boyars enjoyed the right to sue the sovereign. The sovereign could consider both the first instance and supervision. But there were not many such cases. Auxiliary judicial bodies are also emerging. “Russian Truth” mentions a swordsman, a child, and virniki (collector of vira).

Later, such assistants as youths and blizzard workers appeared (they collected court fees). Yabedniki (a person who performed the functions of a prosecutor, that is, was a state prosecutor).

The bodies of the church court were the highest church authorities: metropolitan, bishops, abbots.

Patrimonial

In addition to the state court (prince and his administration) in Kievan Rus the patrimonial court was actively formed- the court of the landowner over the dependent population. It is formed on the basis of immunity grants (the prince grants the village of Buytsy to the monastery of St. George “with money, with virs and with sales”). One can also call a community court, where minor intra-community matters could be decided. But information about the functions of this court is not preserved in the sources.

Church

The expansion of church jurisdiction in Rus' became more and more active. They were mainly concerned with the consideration of marriage and family relations.

The Russian princes understood that church ideology was the most extensive, so they encouraged it.

The Charter of Vladimir Monomakh speaks about the following matters:

1. Rosrus – unauthorized divorce.

2. Mistake – rape.

3. Snatching - kidnapping a woman.

4. Reproach is an insult with a word.

5. Greenery is church theft.

6. Straight - a dispute between husband and wife about property (stomach).

The Church gradually expanded its land ownership: direct seizure of land, contracts, gifts for the funeral of the soul.

The bodies of the church court were the highest church authorities: metropolitan, bishops, abbots.

Church senoria arose. Church feudal lords: bishops, abbots, began to have immunity => received the right to judge.

CONCLUSION: the church court functioned as an authority: a court in ecclesiastical and feudal matters, but the subject must be subject to the church.

In Russia, in the era of its Baptism, the current civil law had not yet gone beyond the framework of ordinary folk law; it was incomparable with the delicately developed Roman law, which underlay the legal life of Byzantium, therefore the church hierarchy that came to us from Byzantium after the Baptism of Russia, received under its jurisdiction many cases that in Byzantium itself were under the jurisdiction of civil magistrates. The competence of the church court in Ancient Rus' was unusually extensive. According to the statutes of the princes of St. Vladimir and Yaroslav, all relationships civil life, which concerned religion and morality, were relegated to the area of ​​the ecclesiastical and episcopal courts. These could have been purely civil cases, according to Byzantine legal views. Already in Byzantium, marriage matters were predominantly conducted by the ecclesiastical court; in Rus', the Church received under its exclusive jurisdiction all matters related to marital unions. Cases concerning the relationship between parents and children were also subject to the holy court. The Church, with its authority, protected both parental rights and the inviolability of the personal rights of children. The Charter of Prince Yaroslav says: “If the girl does not marry, and the father and mother give it by force, and what the father and mother do to the bishop in wine, so does the boy” [ 1 ].

Inheritance matters were also within the jurisdiction of the Church. In the first centuries Christian history In Rus', such things happened often, since there were a lot of “non-wedding”, illegal, from a church point of view, marriages. The rights of children from such marriages to their father's inheritance were subject to the discretion of the ecclesiastical courts. Russian practice, in contrast to Byzantine practice, tended to recognize the rights of children from such marriages to a part of the inheritance. All disputes that arose regarding the spiritual will were also subject to the jurisdiction of church courts. Legal norms of the statutes of St. Vladimir and Yaroslav retained full power until Peter's reform. In Stoglava it is given full text Church Charter of St. Vladimir as the current law.

In the 17th century, ecclesiastical jurisdiction in civil matters expanded compared to earlier times. The “Extract on Cases Under the Patriarchal Order,” made for the Great Moscow Council of 1667, lists such civil cases as:

1. disputes regarding the validity of spiritual wills;

2. litigation regarding the division of inheritance left without a will;

3. on penalties for marriage agreements;

4. disputes between wife and husband about dowry;

5. disputes about the birth of children from a legal marriage;

6. cases of adoptions and the right of inheritance of adopted children;

7. cases of executors who married widows of the deceased;

8. cases of petitions from masters against fugitive slaves who took monastic vows or married free men.

In these cases, all persons - both clergy and laity - in Rus' were subject to the jurisdiction of the church, episcopal court.

But all civil affairs of the clergy were also subject to the jurisdiction of the church authorities. Only bishops could consider litigation in which both parties belonged to the clergy. If one of the parties was a layman, then a “mixed” (mixed) court was appointed. There were cases when clergy themselves sought trial from civil, that is, princely, and later royal judges. Countering such attempts, Novgorod Archbishop Simeon in 1416 forbade monks to appeal to secular judges, and judges to accept such cases for consideration - both under pain of excommunication [ 2 ]. Metropolitan Photius repeated this prohibition in his charter. But both the white clergy and the monasteries did not always prefer to sue the bishops. Often they sought the right to appeal to the princely court, and the government issued them so-called non-conviction letters, according to which the clergy were exempted from the jurisdiction of the diocesan bishops in civil matters. Most often, such letters were given to the clergy of princely and royal estates, but not exclusively to them - they were also issued to monasteries. The Council of the Hundred Heads of 1551 abolished the letters of non-conviction as contrary to the canons. Tsar Mikhail Feodorovich in 1625 gave his father, Patriarch Philaret, a charter, according to which the clergy, not only in litigation among themselves, but also in the claims of the laity, was to be sued in the Patriarchal Class.

Under Tsar Alexei Mikhailovich, all civil affairs of the clergy were transferred to the department of the Monastic Prikaz established in 1649, the existence of which Patriarch Nikon energetically but in vain protested against. The Great Moscow Council, which condemned Patriarch Nikon, nevertheless confirmed Stoglav’s decree on the exclusive jurisdiction of the clergy to bishops, and soon after the Council, by decree of Tsar Theodore Alekseevich, the Monastic Order was abolished.

The uniqueness of church legal proceedings in Rus' in the pre-Petrine era also lay in the fact that the jurisdiction of the saintly courts also included some criminal cases [ 3 ]. According to the statutes of the princes of St. Vladimir and Yaroslav were subject to the ecclesiastical court for crimes against faith and the Church: the performance of pagan rites by Christians, magic, sacrilege, desecration of temples and shrines; and according to the “Helmsman’s Book” also - blasphemy, heresy, schism, apostasy from the faith. The episcopal court heard cases related to crimes against public morality (fornication, rape, unnatural sins), as well as marriages in prohibited degrees of kinship, unauthorized divorce, cruel treatment of a husband and wife or parents with children, disrespect by children of parental authority. Some cases of murder were also subject to the holy court; for example, murder within the family, expulsion of a fetus, or when the victims of murder were persons without rights - outcasts or slaves, as well as personal insults: insulting a woman’s chastity with dirty language or slander, accusing an innocent person of heresy or sorcery. As for the clergy, in the pre-Petrine era they were responsible for all criminal charges, except for “murder, robbery and red-handed theft,” before the bishop’s judges. As Professor A.S. writes Pavlov, “in ancient Russian law there is a noticeable predominance of the principle according to which the jurisdiction of the Church was determined not so much by the essence of the cases themselves as by the class character of the persons: clergy, as primarily ecclesiastical, were judged by the church hierarchy” [ 4 ]. In the Code of Laws of Ivan III and Ivan IV it is directly said: “but the priest, and the deacon, and the monk, and the monk, and the old widow, who feed from the Church of God, then the saint judges” [ 5 ].

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Federal state budgetary higher education institution

Oryol State University

Faculty of Law

Department of History of State and Law

Course work

in the discipline "History of State and Law"

on the topic: “Court in ancient Russian state»

Performed:

Rejepova V.D.

Scientific adviser:

Levina I.R.

Introduction

Chapter 2. Types of courts in the Old Russian state

2.1 Community court

2.2 Princely court

2.3 Patrimonial court

2.4 Church court

Conclusion

Bibliography

Introduction

Relevance of the topic: The emergence of the judicial system in Ancient Rus' is a little-researched issue. This is largely due to the fact that in Ancient Rus' there were no special judicial bodies. Judicial functions were performed by representatives of the administration, including the Grand Duke. However, there were special officials who assisted in the administration of justice. Judicial functions were also performed by the church and individual feudal lords, who had the right to judge people dependent on them (patrimonial justice). The judicial powers of the feudal lord formed an integral part of his immunity rights.

Judicial power was concentrated in ancient Rus' in the hands of princes and their officials (mayors and tiuns), veches and communities. The process was competitive and transparent. The case was decided on the basis of the evidence presented by the parties; these were: confession, witnesses and hearsay, oath, courts of God or ordeals (i.e., trials by water or fire), “field” or judicial duel, red-handed and external signs. The winner of the duel was considered right. On the other hand, if the criminal was caught on the spot or with a stolen item, this was considered sufficient for conviction. The court in its decision stated the outcome of the competition between the parties; At first the court decision was oral, later it was clothed in written form. The court issued a guilty verdict with the “head” of the convicted person to the victim, to satisfy the order specified by the court.

Target course work consists in studying the institutions of the judicial system of the ancient Russian state.

To achieve this goal, it is necessary to solve the following tasks of the course work:

Expand the concept of court in Ancient Rus';

Study the basics of the judicial process in Ancient Rus';

Reveal the main types of ships in Ancient Rus'.

The subject of the study is various sources, characterizing and considering the court and judicial process of the Old Russian state.

The object of the study is the court and process in the Old Russian state.

Despite the lack of research on this topic, theoretical basis The research was based on the works of such famous domestic authors as Sverdlov M.B., Yushkov S.V., Kostomarov N., articles and monographs by Russian and foreign lawyers, materials from scientific journals.

The methodological basis of the research, for solving the set goals and objectives of the work, is a combination of various general theoretical methods: statistical, study of elements historical analysis, comparative legal method, method expert assessments, analysis of literary sources and documents, information, legal and other methods of scientific analysis and research.

When writing this work, educational and scientific literature on the history of the Russian state and law. This course work consists of an introduction, two chapters, a conclusion and a list of sources used.

The first chapter of the course work examines general provisions on the judicial system in Ancient Rus'. In particular, the concept of court and the basis of the judicial process in Ancient Rus', as well as the position of different segments of the population in the judicial process of Ancient Rus', are revealed here.

In the second chapter of the course work, the main types of courts in Ancient Rus' are studied: community court, princely court, patrimonial court, church court.

Chapter 1. General provisions on the judicial system in Ancient Rus'

1.1 The concept of court in Ancient Rus'

court russian law slavic

The Old Russian state and law go through a series of successive stages in their development. The period of their emergence and formation (IX-XI centuries) is the least provided with reliable written sources, including containing information about the development of the judicial system in the ancient Russian state.

The word “court” in Ancient Rus' had very diverse meanings:

1) court meant the right to judge, judicial power,

2) court - the law that determines the procedure of the court; in this sense, the court meant the same as the code of law: Russkaya Pravda or some of its articles are sometimes entitled in the lists with the words: Yaroslavl court, in others - the code of law of Yaroslav,

3) court - the space of judicial power - what we call competence, for example “a governor with a boyar court” or “without a boyar court”, i.e. with or without the right to judge famous circle affairs; finally,

4) court - a judicial process, a court agreement with all the acts preceding it and with all the consequences arising from it.

IN ancient Russian history The word court is first mentioned in the Charter of Prince Vladimir Svyatoslavovich “On tithes, courts and church people.” Vladimir Svyatoslavovich - from 969 the Prince of Novgorod, and from 980 - the Grand Duke of Kiev, under whom the baptism of Rus' took place, i.e. Christianity was adopted. The exact date of adoption of the Charter has not been determined by historians, but researchers of the events of that era attribute its appearance to the first years of the 11th century. The document mentions the current Church of the Holy Mother of God (consecrated in 996), Princess Anna (died in 1011), the metropolitan and bishops (the first bishoprics of Belgorod, Novgorod and Polotsk arose at the very beginning of the 11th century).

More ancient source with a mention of courts than the Charter “On tithes, courts and church people” has not yet been found, which allows us to associate with it the separation of the court from the princely power, the emergence of the court in Rus' as an institution of justice and count its history from the first years XI century

The adoption of Christianity undoubtedly contributed to the formation of ancient Russian law. At first, through the perception of Byzantine law in the form of church rules (canons). Subsequently, as ties with Western and Scandinavian neighbors expanded, the influence of their culture, including legal, also increased. Old Russian princes began to create their own laws.

Thus, the appearance of the first written lists of laws - statutes in the Slavic language under the general name Yaroslav's Truth is associated with the name of Prince Yaroslav the Wise. According to these historical monuments one can trace how the origin and development of law and legal proceedings took place in Ancient Rus', for what acts people were persecuted and how the trial was carried out. They also mentioned blood feud as a form of retribution to the offender for the murder committed: “whoever kills a person, the relatives of the murdered person will avenge the death by death; and when there are no avengers, then the murderer will be exacted from the murderer in money to the treasury...”. Next, the size of the penalties was listed depending on the nobility and position of the killed: the largest fine ("vir") - for the head of a princely boyar. In later sources, blood feud is completely replaced by a fine in favor of the family of the deceased.

In addition, the charters and charters of Yaroslav contained norms establishing the procedure for legal proceedings and the system of punishment for crimes. The place of trial was the princely court, and the prince himself was the main arbiter of justice. At the same time, the prince could entrust the conduct of the court to people specially appointed by him from his entourage, the so-called virniks, who had the right to hire a scribe as their assistants. The Yaroslav Charters also mention the possibility of resolving the litigation by involving 12 citizens who examined the case, decided the issue of the defendant’s guilt, leaving the judge with the right to impose punishment. This is apparently one of the first prototypes of the future jury trial.

Thus, in the Old Russian state the court was not separated from the administration. Posadniks and other officials who administered justice received a certain part of the vir and sales collected during the consideration of cases. In addition, they were rewarded by the parties involved in the process. The highest court was Grand Duke. Old Russian law did not yet know the distinction between criminal and civil proceedings, although some procedural actions could only be used in criminal cases (pursuit, arch). In any case, in both criminal and civil cases an adversarial (accusatory) process was used, in which the parties had equal rights. Both parties to the lawsuit were called plaintiffs. (Researchers believe that the church court also used the inquisitorial, investigative process with all its attributes, including torture).

Russkaya Pravda knows two specific procedural forms of pre-trial preparation of a case - pursuit of a trace and a summary. Pursuing a trail is finding a criminal in his tracks. If the trail leads to the house of a specific person, it means that he is the criminal; if it leads to a village, the community bears responsibility; if he gets lost on the main road, the search for the criminal stops. If neither the lost item nor the thief are found, the victim has no choice but to resort to calling out, i.e. Post a missing item in a marketplace in hopes that someone will identify stolen or lost property from another person. A person who discovers lost property can, however, claim that he acquired it in a lawful way, for example, by purchase. Then the process of arching begins. The owner of the property must prove the good faith of its acquisition, i.e. indicate the person from whom he purchased the item. In this case, the testimony of two witnesses and a mytnik - a collector of trade duties - is sufficient.

The judicial authorities in the ancient Russian state included the community court, which considered cases on the basis of customary law. During the time of Russian Pravda, the court was not separated from the administration, and the judge was, first of all, the prince himself. The princely court resolved the affairs of the feudal nobility and disputes between princes.

The most important matters were decided by the prince together with his husbands, the boyars, while less important ones were considered by representatives of the princely administration. The usual place of court is the "prince's court" (the residence in the capital and the courts of princely officials in the provinces). Local courts operated by mayor and volostel, assisted by tiuns, virniks (collectors of court fees) and other servants. Russkaya Pravda also determines the amount of these fees in favor of numerous judicial officials from the auxiliary personnel (swordsman, children's worker, snowstorm worker).

In addition to the state court (the prince and his administration), a patrimonial court was actively formed in Kievan Rus - the court of the landowner over the dependent population. It is formed on the basis of immunity awards. One can also call a community court, where minor intra-community matters could be decided. But information about the functions of this court is not preserved in the sources. Functions of the church court, which was in charge family and marital relations, which fought against pagan rituals, was carried out by bishops, archbishops and metropolitans. The affairs of the monastery people were handled by the abbot of the monastery, the archimandrite.

Since ancient times, legal proceedings have included 3 stages: identification of the parties, trial proceedings and execution of the sentence. Both parties were called plaintiffs or superniks (a little later - litigators from a lawsuit - a legal dispute). The state does not yet act as a plaintiff, even in criminal cases; it only helps a private person in prosecuting the accused. And the distinction between criminal and civil proceedings does not yet exist, as well as between investigative (inquisitorial) and accusatory (adversarial).

The parties in all cases are private individuals: clan, community, family, victims. The trial was a massive event, attended by crowds of relatives, neighbors and other supporters. The reason for initiating a case could be not only a family petition (for the injury or murder of a relative), but also the capture of a person at the crime scene.

About itself ancient period It is also known that one of the forms of beginning the process was a cry - a public announcement of a crime (loss of property, for example) and the beginning of the search for the criminal. A three-day period was given to return the stolen property, after which the person in whose possession the item was found was declared guilty. It was obliged to return the stolen property and prove the legality of its acquisition. If this could be done, the search began - the continuation of the search for the kidnapper. The last one in the code, who had no evidence, was recognized as a thief with all the ensuing consequences. Within one territorial unit (volost, city), the code went to the last person, when entering someone else's territory - to a third person, who, having paid increased compensation for losses, could begin the code at his place of residence.

Another procedural action is following the trail - searching for the criminal along the trail. If it was a murderer, then the discovery of his traces on the territory of the community obliged its members to pay “wild vira” or look for the culprit. If the tracks were lost in forests, wastelands and roads, the search stopped. The trial was adversarial, which means that both sides “competed” on equal terms, collected and presented evidence and evidence. Used in the trial different kinds evidence, oral, written, witness's testimonies. Eyewitnesses of the incident were called vidokas, in addition to them there were rumors - witnesses " good fame» the accused, his guarantors. Only a free person could act as a listener; purchases (“in small litigation”) and boyar tiuns (slaves) were used as vidoks.

With a limited amount of judicial evidence, oaths (“company”) and ordeals (trials with iron and water) were used by court decision. We know about the latter only from Western sources, because there is no direct evidence of ordeals in Rus'. When tested with iron, the guilt of the subject was judged by the nature of the burn from the hot metal; when testing with water a suspect bound in a special way, immersed in water, if he did not drown, then he was found guilty. Ordeals are a type of divine judgment.

It is possible that already in ancient times in Rus', when there was insufficient evidence, a judicial duel was used to finally clarify the truth, but information about it was preserved only from a later time (field). Such general ideas Russian Pravda and other sources give us information about ancient Russian law and procedural judicial norms. We see that the legislator was guided by the principle of causality (reference to a specific case) and did not resort to theoretical generalizations. A number of legal norms are just being outlined in legislation, and their development is a matter of the future.

1.2 General characteristics of the judicial process in Ancient Rus'

The general form of the process from ancient times consisted of three stages: 1) identification of the parties, 2) court proceedings and 3) execution of the decision. But along with the general one, there were other forms in which one or another of the indicated parts of the process was missing. Parties. Both parties were called “plaintiffs,” “supers,” or “litigants.” Such identical names of the parties indicate the absence of procedural advantages for both the plaintiff and the defendant, with some exceptions, however, for criminal claims.

The concept of the state as a plaintiff (in criminal cases) does not yet exist; therefore, there is no distinction between criminal and civil, investigative and indictment processes. But since quite early times, the state has been helping the private plaintiff in prosecuting the accused, leading the prosecution of crimes against communities and actively protecting the interests of the parties, prohibiting the victim from releasing the criminal from punishment under the law. There is news that already in the 12th century. the public authorities prosecuted crimes even when the private plaintiff abandoned the claim, and that the proximate reason for this phenomenon was that the authorities did not want to renounce the criminal fine that followed them. But to think that monetary interest was the only one that then guided the state authorities in its criminal and police activities would be wrong. The parties, as a general rule, in all cases are private individuals. But in ancient times, private persons did not mean physical persons: then the family, clan and community acted as plaintiffs and defendants. Subsequently, a limitation of this appeared, and it was established who exactly could avenge father, son and brother. Under Russian law, the community's primary duty to answer for murder claims is beyond doubt; from it arose mutual responsibility (in which the community is no longer only the defendant, but also the judge of crimes).

In addition to the family, role and community, the plaintiffs and defendants were legal entities in the proper sense, usually in in full force its members - individuals. Moreover, their legal capacity had unlimited limits: women, both married and widows, children and even slaves, could bring claims. Having excluded crowds of relatives and neighbors from participating in the trial, the law had to determine who must necessarily appear in person at the trial and who could send a representative (“defendant”, “accomplice”) on their behalf. It is likely that initially the personal presence of the parties in court was a general rule, since the process must be carried out by personal means (for example, trials by fire and water, oath and field) with the help of family and clan. Therefore, Russian Truth is silent about representation at all. In the era of the Novgorod and Pskov judicial charters, judicial representation received widespread development. Who could have representatives? According to the Novgorod Charter, anyone could have attorneys, who are called defendants in it (Articles 15, 19, 82; according to the Pskov Charter, this right belonged only to women, children, monks and nuns, decrepit old people, the deaf). Who could be the representative? First of all, people related to the plaintiff or defendant through family ties.

In addition to natural representatives, any third party could be sent as a defendant, with one exception: persons vested with public (administrative) power cannot be private attorneys. This was obviously done in order to prevent involuntary pressure on the judge's conscience.

Establishment of relations between the parties before trial. Procedural relations of the parties are established according to general rule, an agreement between them. The contents of this agreement were next questions: the subject of the dispute, the judge to whom you should go for a decision, and the deadline for appearing in court. However, the second of these three items was included in the agreement only in the era of Russian Truth.

At a later time, the term becomes an essential condition of the contract. The importance of this condition is determined by the fact that the party that has not fulfilled it, i.e. failure to appear within the prescribed period, thereby losing the claim. Meanwhile, in cases where the established deadline is canceled by the court and postponed to another time, these strict consequences disappear: a three-time summons is sent to the person who failed to appear, after which a fine for failure to appear is collected.

In more late era the contract was concluded with the participation of the judiciary, to which the plaintiff turned for assistance as a general rule. The judiciary will provide bailiffs; those bailiffs who perform their duties within the city are called Podvoisky. The activities of these persons are not, however, public service: the plaintiff must hire them (ibid.). To facilitate the parties, a constant fee has been introduced, for the walking and riding of bailiffs in Pskov for 10 versts - money; in Novgorod, this payment was called pogon and was different depending on which court the bailiff was coming from: if from the court of the ruler, then for 100 versts 4 hryvnias, from the prince - 5 kunas, from his tiun - 2 kunas.

Special types of establishing the relationship of the parties before trial are: a) arch, b) pursuit of the trail.

The code consists of the plaintiff finding the appropriate defendant through a call, a code and an oath. Everyone who has lost an item announces it at the auction - shout - of the “world” where it happened over the course of three days. If the plaintiff finds his thing three days after the call, then the one from whom it was found is recognized as the defendant, who not only returns the thing, but also pays a criminal fine - 3 hryvnia for the offense. If the call has not yet been made, or if the owner found the thing in the hands of another before the expiration of the legal three days after the call, or, finally, he found it not in his city (or “world”), then the arch begins.

The person in whose possession the thing was found is by no means recognized as a defendant: he could legally acquire it from a third party known to him. That is why the law, leaving a thing in the possession of the person who bought it, obliges him, together with the original owner, to go to the person from whom the first purchased it. If this third party also refers to the legal way of acquiring the thing, then the collection is continued further by all interested parties. The one who reaches the third vault must give the plaintiff a price equal to the thing in money, and he himself leads the vault further.

The arch can end in three ways: either the last owner does not prove that he acquired the thing legally from someone, or if he is able to prove it, but does not know the person from whom he bought it, or, finally, the arch will lead to the borders of the state. In the first case, the last owner is recognized as a thief and is subject to a criminal fine and a private penalty, which goes to the satisfaction of those to whom he sold the stolen item. In the second and third cases, the last owner must prove that he bought and did not steal the item. This can only be proven by the oath of two witnesses to the purchase. The oath of two free husbands can be replaced by the oath of one Mytnik. In the Statutory Dvina Charter, the end of the vault is determined by the number of vaults, namely ten (the real thief was not found before this; Statutory Dvina Charter 5).

Track. If the criminal was not caught at the crime scene, then the search for traces begins. It was assumed that where the “face” lay, the criminal was hiding there. Hence, if a “head” is found - the corpse of a murdered person, then the rope where the head lies must look for the culprit and hand him over, after which the accused does not use any procedural means of defense, or the rope itself must pay a wild price. If a stolen item is found in someone's house, then the owner of the house is liable for theft as the alleged thief.

Then the concept of “face” expands even more: the very trace left by a criminal or a thing is recognized as a face. While searching for the theft along the “trace”, the plaintiff can always lose these traces. Where they are lost, a criminal is suspected. If the trail is lost on a high road or in an empty steppe, then every lawsuit ends.

In the courts of the Old Russian state, the following main means of establishing the truth were used: hearsay, divine judgments and acts.

Rumors and videos. In the literature, there is a twofold explanation for the names “hearsay” and “vidok”. According to the first, the viewer is an eyewitness to the fact that took place; hearsay - a person who testifies by hearing. According to the second, sight and rumor mean two procedural roles, completely different from each other. A fork is a simple witness in our sense of the word, and a listener is an accomplice to whom the plaintiff and defendant were “sent.”

Number of rumors. The best indication of the difference between hearsay and witnesses in our sense of the word is that the law directly requires a certain number of them in various types of cases: for cases of personal insults, two witnesses are required, or, more correctly (as we will see below), two on each side . Probably the same amount was required in cases of theft. In cases of murder, the prosecutor must present seven allegations, etc.

All these various requirements for the number of obediences are simplified in the era of the Pskov and Novgorod charters, when in all matters requiring obedience, only one listener acts.

Qualities required from hearers. The rumor must be a free man - a “husband”. But a direct exception to this was also allowed: a) slaves of the highest kind, namely the noble boyar tiuns (who themselves carried out justice in the boyar estates) and semi-free people - purchases - can, at the request of necessity (i.e. due to the lack of servants-husbands) recognized for obedience; b) a slave of any kind can be admitted to obedience in an improper sense, i.e. according to the serf, the process may begin, but not end with his testimony; in the process itself, the serf does not play role or listen, and does not take the oath.

Finally, it is decided that “slave listens to slave,” i.e. in lawsuits against a slave, the same slave can be put forward as a rumor.

The second quality required of an acolyte is that he must be a citizen of the state, and not a foreigner. An exception is made to this principle in claims of citizens against foreigners.

Finally, from the concepts of the servant as a husband, it follows that the servant could not be a woman.

Hearing speech in court. The hearing a) must be in court: failure to appear in court leads to the loss of the claim for the party that brought it; b) must verbally confirm everything that the party that nominated him said. The identity of the testimony must be literal: “word against word”; c) in the era of Russian Truth, if a court settlement ended with the hearings of both sides showing in accordance with the words of those who made them, then the hearings must go to the company and swear an oath. In the era of judicial letters, the hearsay allowed wives to take part in a judicial duel with the defendant.

God's judgments. In the Old Russian state, the forms of God's judgment were: lot, company, ordeal and field.

Lot. The most ancient way solutions to all dubious matters. However, the lot does not have any independent meaning. And it is used in combination with other evidence.

Company. The word “rota” does not quite correspond to the current concept of an oath (borrowed from Poland): a company, according to ancient interpreters, means a dispute, a battle. It served as the initial source from which ordeals and legal battles subsequently developed. In our ancient monuments it appears in the form of an oath before the gods or before God. In later Christian times it was called the kiss of the cross.

In a judicial sense, a company has a dual meaning: independent and auxiliary. Company having independent meaning, is committed by the parties to the claim themselves in the absence of rumors.

The company becomes an auxiliary means during testimony and during a judicial duel. The testimony of witnesses (hearsay) in the era of Russian Truth always ends in a company. During judicial duels, the company precedes the field, constituting, as it were, its necessary first part.

Who took the oath? According to the Russian Pravda, both the plaintiff and the defendant. Although in many places of the Russian Pravda only the oath of one side is mentioned - either the plaintiff or the defendant, it does not at all follow from this that the right of oath for the other side is not implied here.

In the era of letters of judgment, it was no longer both parties who swore an oath together, and it was not the lot that decided the choice between them, but the following general rule: the defendant was given the choice either to take the oath himself, or to give the oath to the plaintiff.

Ordeals. Ordeals are trials through fire and water. In our country, the first news about them comes from the Extensive Russian Truth, and in treaties with the Germans they are mentioned in last time. In general, it is generally accepted to think that from the 13th century. Our ordeals are disappearing; but judicial acts even of the 16th century. indicate that even at that time the water test was carried out. The form of these tests remains little known to us: it is only known that the test by fire was carried out through a hot iron.

We get information about the form of water tests from the teaching of Serapion, the 13th century preacher: “The divine rules command that many hearken to condemn a person to death. You listen to the water and say: if it begins to drown, there is an innocent one, if it still floats, there are Magi. Can't the devil, seeing your lack of faith, hold back so that he doesn't plunge into murder? I, having abandoned the obedience of a god-created man, and turned to soulless existence - to water, accepted obedience to the angry: God.

What was the meaning of these tests, and what could be their consequences? Sources indicate that if the tests were accompanied by long-term marks (wounds) and suffering, then the person was found guilty. In this case, the tests had final decisive force.

Field (judicial duel). All the means of struggle outlined above are closely related to each other: if there are rumors, then the matter is decided by them; if there are no rumors, then (depending on the value of the claim) a company or lot, a test with water or iron, follows. The field stands completely outside this system of means. The field is not mentioned in our sources until the 13th century. (i.e. when ordeals disappear from the laws), but then continuously exists until the 17th century. The first mention of it is contained in the treaty with the Germans in 1229 (Articles 15 and 16). Here judicial duels are juxtaposed next to ordeals.

There is no doubt that judicial duels originate in ancient times from the very properties of the original process (personal struggle); they are as ancient among us as war, and, therefore, were by no means borrowed by us from outside. One must think that judicial duels, existing next to ordeals as their replacement, depending on the arbitrariness of the parties, by the 13th century. began to displace the ordeals.

An essential condition of a judicial duel is the equality of the parties, which was understood primarily in the sense of physical equality.

Hence the following provisions: only a man against a man, a woman against a woman, but not a man against a woman can fight (Psk. court. gr., 119). The elderly, children and monks are not obliged to enter the duel of adults and healthy people. In both cases, the weaker side may have “mercenaries”, hired fighters. But since in this case the equality of impositions was violated, the other side also received the right to have a hireling. A further condition of the duel is equality of weapons: our weapons could be swords and clubs. The third condition of the duel is its time and place.

According to the Novgorod court charter, a duel can follow no earlier than two weeks after the case was considered in court; if the duel did not take place within this period, then the side that evaded it is accused. The place of the duel was a specially designated “pale”, a special battle theater outside the city. Court officials had to be present during the fight.

In what cases did the field take place? The scope of application of the duel coincides with the scope of application of ordeals. Further, the field was used in those claims for land ownership in which the right of both parties is affirmed by equivalent written acts. Finally, the field applies to claims arising from such contracts that did not require a formal conclusion of the transaction. In all other cases the field is disabled.

Who should take the field? On the one hand - the defendant, on the other - either the hearing or the plaintiff. The defendant issues a challenge to the hearing; if the hearing officer evades the call, then the plaintiff is called.

Consequences of court battles: the winner is recognized as right in any case.

Acts. By the end of the existence of the Old Russian state, written evidence (acts) was presented to the court in most cases arising from contracts that were previously decided by hearsay, and in litigation regarding real estate. These acts are either informal - boards or formal - records. The first are domestic acts, the second are fortified. Strengthening in Pskov took place through leaving a copy in the chest of the Holy Trinity. The first did not exclude the possibility of either testimony or judgments of God; the latter decided the matter unconditionally.

The verdict and its execution. The process in the Old Russian state begins, is conducted and ends with the forces of the parties themselves. In ancient times, a court decision was first given verbally, then it takes the form of a letter - either “right” if the trial took place, or “non-judicial” if the party was accused of failure to appear. The document will be issued to the right party for its satisfaction. Satisfaction, although based on the law, is, however, the subject of new conditions between the parties, “negotiations between them.

Simultaneously with the appearance of the first court decisions, the need arises to ensure the possibility of coercion against individuals who do not want, for whatever reason, to conform their actions with the decisions made by the judiciary.

Despite what was generally accepted in the early period of development Russian state understanding of enforcement proceedings as part of civil proceedings, analysis and enforcement legislation allows us to come to the conclusion that enforcement actions, regardless of what historical stage development of legislative regulation is subject to analysis, were supposed to be so simple that for the most part they were entrusted not to judges (courts) as government bodies with special qualities that are necessary to solve the first task, but to other, “lower” bodies (pravetchik, police, volost and rural superiors, and later - bailiffs, police and volost executive committees, bailiffs).

The exception here is the period from 1261 to 1649, when judges could themselves execute decisions in cases of real estate, but they had the right to entrust execution of executive actions to persons appointed by them, from which it can be assumed that judges were unlikely to use the right to execute .

The study of the executive process in this regard has always been a thankless task. On the one hand, it was necessary to adhere to the official version that “the process of enforcing a decision is part of the general civil judicial process, and all enforcement actions must be carried out in the same order and with the same basic techniques as the actions of the court itself in examining the case " On the other hand, it was impossible not to notice that the execution of decisions was always “in the hands of less qualified workers.”

Among the first Russian sources of law containing norms of an executive nature, one can note the Treaty of Oleg with the Greeks, in which it was established that “the claim must be recovered from the guilty party in full, but if he cannot pay everything, then he must give up everything he has, and to swear that there is no one who could help him in payment,” as well as Russian Pravda, which provided for the possibility of dealing with a debtor merchant according to the “arbitrariness” of the owner of the goods that died due to the fault of this merchant.

However, these legal provisions can be called “rules of executive law” only conditionally. Specified Russian rules practically repeat the provisions of ancient Roman law. according to which the creditor himself, upon the maturity of payment, could arrest the debtor and, by selling him at public auction, receive satisfaction from the proceeds or keep the defendant until the debt is fully paid off. Thus, punishment for obligations could be carried out without trial and adversarial or investigative principles. Similar norms were contained in the agreement between Novgorod and the Germans in 1261. According to the Novgorod Charter of Judgment, the party was allowed to receive independent satisfaction from the debtor, but only after the expiration of the period for voluntary performance, which in case of a dispute could be established in court. As we see, enforcement proceedings at this time could exist completely independently of the civil process, just as the latter could do without the enforcement process.

Over time, unauthorized execution was prohibited, and arrest began to be imposed only with the permission of the judiciary. However, on the outskirts of the Russian Empire until the 17th century. were recognized as the legal actions of a creditor who arbitrarily took possession of the property pledged to him by the debtor after a delay in payment.

The first reform of enforcement proceedings in Russia in 1261 attracts attention with the emergence of the first legislatively regulated method of executing court decisions, called “delivery by the head.” “Giveaway by head” provided for the deprivation of the insolvent debtor and members of his family (wife, children) of freedom and their sale into slavery at auction.

If the claimant was in singular, he could take the debtor as his slave. A little later, “eternal slavery” was replaced by temporary work, in which the debtor either worked off the debt himself, or he could be bought out by other persons. Such an enforcement measure is quite attractive due to its effectiveness, but note that this measure is impossible for a democratic state that constitutionally does not recognize forced labor.

The reform of 1261 is also interesting because during its implementation, the first officials appeared who specialized in the execution of court decisions on the collection of sums of money, called “pravetchiki.” The task of the “pravetchiki” was to “correct the claim”, i.e. actually transfer to the lender the property awarded to him from the defendant or cash without imprisonment of the debtor.

Accordingly, the measures that the pravetniks applied to debtors were called “pravezh”, and if the pravezh was ineffective, the defendant was given the head to the lender before redemption. The court's control over the execution process under the reform of 1261 was limited to the implementation of decisions on land ownership, which were given special importance in Russia in the Middle Ages. The execution of such decisions was entrusted to persons specially appointed by the court, but could also be carried out by the judges themselves.

Chapter 2. Types of courts in the ancient Russian state

2.1 Community court

Being a large and structurally complex form social organization, the community could exist only if there was a highly developed system of self-government. In the peasant community, this system was the result evolutionary development the most ancient self-governing potestar institutions, was the successor to popular rule, an almost universal phenomenon during the times of Ancient Rus', but later it was supported among the peasantry - the social class closest to the land and the widest segment of the Russian population.

Peasant democracy in communities was slightly inferior in scale to the early state government, but undoubtedly surpassed it in experience, ability to survive under conditions of restrictions, opposition, heavy jealous and suspicious control from the growing centralized bureaucracy.

If we imagine a community as a self-governing organization and consider it precisely in this aspect, then its center and main link will be the gathering - community, village, rural. It clearly defines what we today call direct public democracy, presenting the most flexible and viable form, going back to the times when people, united in self-governing groups, decided matters together, acted in solidarity and by common consent.

Village courts were clearer and closer to most community members than state courts: here, it seemed to them, it was easier to find the truth and get fair satisfaction of their claims. Community legal proceedings were based on local customs, in which, at the very least, a simple peasant understood, state courts were guided by laws that were completely incomprehensible to the peasant. He was bitterly and sincerely perplexed when, being in the right according to rural concepts and aware of this rightness, he lost the case according to the law in the volost court or before the magistrate. He was repelled by formalism, officialdom and the callousness of court officials, which did not and could not exist in a communal environment. Village judges began to consider a family, land or other dispute, having a fairly clear idea of ​​it not so much from the words of the parties, but from personal observations and their own impressions, because before their eyes a conflict arose and flared up in the family or between neighbors. Knowing, as a rule, all the “ins and outs” of the dispute, they did not feel any particular need for what in state courts is called “collection and analysis of evidence”: “When the case is known to the whole world, what is the need for evidence? The world will then stand up for what is right.” It is difficult to mislead, deceive, outwit, or fool such knowledgeable judges by taking advantage of the opponent’s innocence. So, if the judges are not bribed, which, unfortunately, happened in last times existence of the community, one could fully count on a fair verdict. “The peasants value the village court very much, despite the absence of any legal authority in it.” The advantage of community courts over volost courts was expressed in their efficiency; despite the lack of any support from the state and the law, noted I.G. Orshansky, they manage to solve most peasant affairs to the end. S.V. Pachman argued, relying on some static data, that two-thirds of the cases to be considered in the volost courts ended in reconciliation in the community.

It was said above that reconciliation of the parties and resolution of the case on the merits were two of the most important functions of community courts, but in reality they often merged. In any case, village gatherings and courts did not consider it possible to release the disputants as enemies. Reconciliation could take place in the form of mutual renunciation of the parties' claims, after which there was, in fact, no need to resolve the dispute. But most often, reconciliation in court was achieved without renunciation of claims on either side through a compromise, a settlement deal. This is truly a transaction from a civil law point of view. “Like a deal,” wrote S.V. Pachman, reconciliation is that form of private protection of rights, through which the parties resolve, according to mutual consent, controversial or dubious legal relationship, without resorting to the assistance of the court. But usually settlement deals are concluded through the court itself, and even for the most part on the initiative of the latter. Becoming in such a connection with judicial proceedings, a settlement agreement, as it were, replaces a court decision, is its surrogate, so that the decision serves only as a formal sanction of a voluntary agreement between the parties.”9 Judges spend most of their time on exhortations, persuading the parties in order to persuade them to end the litigation and part with the world. If the litigants are very heated in mutual accusations and reproaches, the judges stop the negotiations and postpone the case for a certain period in order to give the disputants time to calm down, come to their senses, and come to their senses. Over time, everything would work out, the peasants believed, the dispute would lose its severity and stop by itself. This folk method of resolving conflicts is very ancient in origin and has been successfully used even in matters of blood feud. Almost all categories of peasant cases of a civil nature could end in reconciliation in the form of a settlement deal.

The procedural side of community legal proceedings was relatively simple. First of all, it was assumed that both parties in the process should be active, willing to give explanations, and recognize obvious, even if unfavorable for the outcome of the case, unpleasant facts for them. The sincerity of the peasant's behavior in court was highly assessed, and stubbornness, arrogant denial, and concealment of information and facts necessary for a correct judicial decision, on the contrary, were sharply condemned. Community legal proceedings, generally speaking, were based on faith and trust; the plaintiff, who did not have a single piece of evidence confirming his claim, could still count on a decision in his favor if the defendant himself admitted this claim. The court noted: “The defendant admitted that he really acted against the plaintiff against his conscience.” In many cases, the village court would be helpless if a cunning defense attorney stood next to the defendant, telling him - “don’t confess!”, “It’s not proven - you’re not guilty!” That is why representation of the interests of the parties in community litigation was, as a rule, not allowed. The material to justify the verdict must be obtained first-hand; the community court preferred to deal with the defendant himself, to talk with him, and not with his representative. In state court, speeches in the interests of the defendant are made mainly by a professional - a lawyer, a “dear friend” of all defendants and accused. As official jurisprudence teaches, “ Golden Rule the defendant in a civil trial must be able to remain silent,” let the lawyer say everything for him: it will be better that way!

Observing the fruits of advocacy in the volost court, as a result of which the right one left the court accused, and the guilty one acquitted, the Russian peasants for the most part developed a persistent rejection of the figure of the lawyer, whom they often called a liar. It is possible that for this reason, representation of the parties did not become part of the procedural practice of the community courts. In general, the village judges sought to base their decisions on facts that the defendant himself simply admitted, generally agreeing with the verdict that was not in his favor. When, having received a fair sentence, he left the court angry and dissatisfied, it means that the truth did not reach his consciousness; in this case, the judges felt some inconvenience, believing that the case did not pose last point, the ultimate goal of the proceedings has not been achieved. State courts have probably never had such subtle problems of an ethical and legal nature. When two respectable villagers stood before the court - one as an accused and the other as a victim, the judges first of all tried to reconcile the parties and find suitable grounds for this. The victim was persuaded in every possible way to forgive the accused if he confessed everything and admitted his guilt. The forgiveness could be unconditional or contain any conditions of property, as well as personal, for example, to make amends, to apologize at the gathering. The “forgiven matter” was immediately stopped, and the forgiveness itself was perceived with warm approval, the judges praised the parties and rejoiced that everything was done “in a good way,” in a Christian way.

Reconciliation of parties in cases on charges of theft, battery, and fraud often took the form of a settlement deal, which was widely practiced when considering civil law disputes. A settlement between a thief and a victim, allowing the criminal to pay off a severe punishment, looks rather strange if you do not take into account that the community never rose to the concept of a “case of public prosecution.” She did not take criminal acts against individual community members personally; these acts were perceived as a private grievance and a matter of private persecution. In such cases, the world was obliged to give a quick and fair trial in order to protect the offended, but it did not show any interest in prosecuting the criminal. The victim himself must initiate consideration of the conflict in court; no one else could do this. This circumstance once again proves that the peasant in the Russian community was not a faceless creature, completely merged with the collective, that in the sphere of customary legal relations within the community he acted as a subject of private rights, a bearer of completely autonomous property and personal interests.

The absence of a clearly defined punitive line in community justice explains the fact that peasants were often unable to assimilate many of the criminal legal concepts that guided the state judicial system and criminal legislation. This concerns, first of all, the concept of crime. In the people's legal consciousness, it was significantly closer to an ordinary offense and was perceived as a consequence of a certain combination of circumstances that happened by the will of God. The peasants looked at the criminal himself as the first victim of his bad deed; he had already suffered, punished himself by stepping over his inherent image of God and his inner human dignity. This is a person who has lost himself, pitiful, often embittered and who does not really understand what is happening to him. For a civilized state, a bad human act, defined in the code as a crime, is a reason for punishment, suppression, and all kinds of abuse of the criminal on completely legal and rationally justified grounds. For community members, a criminal is the same God’s creation as everyone else, but he is a stumbled, unhappy person towards whom compassion should be shown and who has the right to count on the help of his neighbors. The customary legal consciousness of the peasants proceeded from the fact that “society must and has the right to put the criminal in such a position as to make him harmless and at the same time not so much punish as correct and instruct.”

Therefore, a crime is dangerous not because of its subjective side, for any intent is nothing more than a clouding of the mind or a delusion of an inexperienced soul, but because of its objective side, the presence of harm caused to the victim. The efforts of the community court in so-called criminal cases are primarily aimed at eliminating and compensating for harm. That is why they often ended in the same way as civil cases - material, monetary reward for the victim, but did not have any other legal consequences. In those cases where non-material sanctions were applied, they were reduced mainly to floggings and disgraceful actions. “Those guilty of theft,” testifies one of the sources, “are sometimes subjected to humiliating punishment: the stolen item is imposed on the culprit and led with the beating of drums. The one who stole the flour was once harnessed to a sleigh and forced to take the flour to the peasant from whom it was stolen.”

Since crime is mainly harm, such concepts as attempted crime, forms of guilt, mitigating and aggravating circumstances, etc. turned out to be far from the peasant legal consciousness. The system of punishments for crimes tried in community courts is rather vague and is not clearly distinguished from property sanctions applied in civil cases. Settlement deals in any case included certain payments, compensation, restoration of destroyed buildings at the expense of the culprit, etc.

Community judges, however, understood that property sanctions for the crime of one person placed a heavy burden on his innocent family, wife, children, elderly parents, and therefore they applied these sanctions very carefully in criminal proceedings. Believing by common sense that the offender must personally suffer the unpleasant consequences associated with any criminal punishment, community courts, in the absence of prisons, hard labor, places of exile and deportation, turned, and quite widely, to types of corporal punishment. Flogging in the community was not only a measure of punishment, but also, one might say, a means of education, a method of preventive influence on persons capable of committing offenses and crimes. They flogged not only drunkards and debauchees, but also bad, faulty householders, tax defaulters, flogged adult children for disrespectful attitude to elderly parents and, of course, criminals - thieves, swindlers, instigators and participants in bloody fights. In almost all cases, corporal punishment required the decision of assemblies and some (not all) courts. But sometimes reprisals in the form of canings were carried out without any trial by decision of the organizers public works. Thus, in secular towns, each householder was responsible for his own section of the fence, which was marked with special marks; if the work was “worthless,” then the culprit was brought to the place of bad work and punished with rods from five to twenty strokes.

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court russian law slavic

The Old Russian state and law go through a series of successive stages in their development. The period of their emergence and formation (IX-XI centuries) is least provided with reliable written sources, including those containing information about the development of the judicial system in the ancient Russian state.

The word “court” in Ancient Rus' had very diverse meanings:

1) court meant the right to judge, judicial power,

2) court - the law that determines the procedure of the court; in this sense, the court meant the same as the code of law: Russkaya Pravda or some of its articles are sometimes entitled in the lists with the words: Yaroslavl court, in others - the code of law of Yaroslav,

3) court - the space of judicial power - what we call competence, for example, “a governor with a boyar court” or “without a boyar court,” that is, with or without the right to judge a certain range of cases; finally,

4) court - a judicial process, a court agreement with all the acts preceding it and with all the consequences arising from it.

In ancient Russian history, the word court was first mentioned in the Charter of Prince Vladimir Svyatoslavovich “On tithes, courts and church people.” Vladimir Svyatoslavovich - from 969 the Prince of Novgorod, and from 980 - the Grand Duke of Kiev, under whom the baptism of Rus' took place, i.e. Christianity was adopted. The exact date of adoption of the Charter has not been determined by historians, but researchers of the events of that era attribute its appearance to the first years of the 11th century. The document mentions the current Church of the Holy Mother of God (consecrated in 996), Princess Anna (died in 1011), the metropolitan and bishops (the first bishoprics of Belgorod, Novgorod and Polotsk arose at the very beginning of the 11th century).

To date, no more ancient source with a mention of courts than the Charter “On tithes, courts and church people” has been found, which allows us to associate with it the separation of the court from the princely power, the emergence of the court in Rus' as an institution of justice and count its history from the first years of the 11th century.

The adoption of Christianity undoubtedly contributed to the formation of ancient Russian law. At first, through the perception of Byzantine law in the form of church rules (canons). Subsequently, as ties with Western and Scandinavian neighbors expanded, the influence of their culture, including legal, also increased. Old Russian princes began to create their own laws.

Thus, the appearance of the first written lists of laws - statutes in the Slavic language under the general name Yaroslav's Truth is associated with the name of Prince Yaroslav the Wise. From these historical monuments one can trace how the origin and development of law and legal proceedings took place in Ancient Rus', for what acts people were persecuted and how the trial was carried out. They also mentioned blood feud as a form of retribution to the offender for the murder committed: “whoever kills a person, the relatives of the murdered person will avenge the death by death; and when there are no avengers, then the murderer will be exacted from the murderer in money to the treasury...”. Next, the size of the penalties was listed depending on the nobility and position of the killed: the largest fine ("vir") - for the head of a princely boyar. In later sources, blood feud is completely replaced by a fine in favor of the family of the deceased.

In addition, the charters and charters of Yaroslav contained norms establishing the procedure for legal proceedings and the system of punishment for crimes. The place of trial was the princely court, and the prince himself was the main arbiter of justice. At the same time, the prince could entrust the conduct of the court to people specially appointed by him from his entourage, the so-called virniks, who had the right to hire a scribe as their assistants. The Yaroslav Charters also mention the possibility of resolving the litigation by involving 12 citizens who examined the case, decided the issue of the defendant’s guilt, leaving the judge with the right to impose punishment. This is apparently one of the first prototypes of the future jury trial.

Thus, in the Old Russian state the court was not separated from the administration. Posadniks and other officials who administered justice received a certain part of the vir and sales collected during the consideration of cases. In addition, they were rewarded by the parties involved in the process. The highest judicial authority was the Grand Duke. Old Russian law did not yet know the distinction between criminal and civil proceedings, although some procedural actions could only be used in criminal cases (pursuit, arch). In any case, in both criminal and civil cases an adversarial (accusatory) process was used, in which the parties had equal rights. Both parties to the lawsuit were called plaintiffs. (Researchers believe that the church court also used the inquisitorial, investigative process with all its attributes, including torture).

Russkaya Pravda knows two specific procedural forms of pre-trial preparation of a case - pursuit of a trace and a summary. Pursuing a trail is finding a criminal in his tracks. If the trail leads to the house of a specific person, it means that he is the criminal; if it leads to a village, the community bears responsibility; if he gets lost on the main road, the search for the criminal stops. If neither the lost item nor the thief are found, the victim has no choice but to resort to calling out, i.e. Post a missing item in a marketplace in hopes that someone will identify stolen or lost property from another person. A person who discovers lost property can, however, claim that he acquired it in a lawful way, for example, by purchase. Then the process of arching begins. The owner of the property must prove the good faith of its acquisition, i.e. indicate the person from whom he purchased the item. In this case, the testimony of two witnesses and a mytnik - a collector of trade duties - is sufficient.

The judicial authorities in the ancient Russian state included the community court, which considered cases on the basis of customary law. During the time of Russian Pravda, the court was not separated from the administration, and the judge was, first of all, the prince himself. The princely court resolved the affairs of the feudal nobility and disputes between princes.

The most important matters were decided by the prince together with his husbands, the boyars, while less important ones were considered by representatives of the princely administration. The usual place of court is the "prince's court" (the residence in the capital and the courts of princely officials in the provinces). Local courts operated by mayor and volostel, assisted by tiuns, virniks (collectors of court fees) and other servants. Russkaya Pravda also determines the amount of these fees in favor of numerous judicial officials from the auxiliary personnel (swordsman, children's worker, snowstorm worker).

In addition to the state court (the prince and his administration), a patrimonial court was actively formed in Kievan Rus - the court of the landowner over the dependent population. It is formed on the basis of immunity awards. One can also call a community court, where minor intra-community matters could be decided. But information about the functions of this court is not preserved in the sources. The functions of the church court, which was in charge of family and marriage relations and fought against pagan rituals, were carried out by bishops, archbishops and metropolitans. The affairs of the monastery people were handled by the abbot of the monastery, the archimandrite.

Since ancient times, legal proceedings have included 3 stages: identification of the parties, trial proceedings and execution of the sentence. Both parties were called plaintiffs or superniks (a little later - litigators from a lawsuit - a legal dispute). The state does not yet act as a plaintiff, even in criminal cases; it only helps a private person in prosecuting the accused. And the distinction between criminal and civil proceedings does not yet exist, as well as between investigative (inquisitorial) and accusatory (adversarial).

The parties in all cases are private individuals: clan, community, family, victims. The trial was a massive event, attended by crowds of relatives, neighbors and other supporters. The reason for initiating a case could be not only a family petition (for the injury or murder of a relative), but also the capture of a person at the crime scene.

It is also known from the most ancient period that one of the forms of beginning the process was a cry - a public announcement of a crime (loss of property, for example) and the beginning of the search for the criminal. A three-day period was given to return the stolen property, after which the person in whose possession the item was found was declared guilty. It was obliged to return the stolen property and prove the legality of its acquisition. If this could be done, the search began - the continuation of the search for the kidnapper. The last one in the code, who had no evidence, was recognized as a thief with all the ensuing consequences. Within one territorial unit (volost, city), the code went to the last person, when entering someone else's territory - to a third person, who, having paid increased compensation for losses, could begin the code at his place of residence.

Another procedural action is following the trail - searching for the criminal along the trail. If it was a murderer, then the discovery of his traces on the territory of the community obliged its members to pay “wild vira” or look for the culprit. If the tracks were lost in forests, wastelands and roads, the search stopped. The trial was adversarial, which means that both sides “competed” on equal terms, collected and presented evidence and evidence. Various types of evidence were used in the trial: oral, written, and witness testimony. Eyewitnesses of the incident were called vidokas, in addition to them there were rumors - witnesses of the “good fame” of the accused, his guarantors. Only a free person could act as a listener; purchases (“in small litigation”) and boyar tiuns (slaves) were used as vidoks.

With a limited amount of judicial evidence, oaths (“company”) and ordeals (trials with iron and water) were used by court decision. We know about the latter only from Western sources, because there is no direct evidence of ordeals in Rus'. When tested with iron, the guilt of the subject was judged by the nature of the burn from the hot metal; When testing with water, a suspect, tied in a special way, was immersed in water; if he did not drown, he was found guilty. Ordeals are a type of divine judgment.

It is possible that already in ancient times in Rus', when there was insufficient evidence, a judicial duel was used to finally clarify the truth, but information about it was preserved only from a later time (field). Such general ideas about ancient Russian law and procedural judicial norms are given to us by Russian Truth and other sources. We see that the legislator was guided by the principle of causality (reference to a specific case) and did not resort to theoretical generalizations. A number of legal norms are just being outlined in legislation, and their development is a matter of the future.