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2015-02-18

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LAW
UDC 340
M.Kh. Tskhovrebova
candidate of law
Z.M. Burnatseva
candidate of pedagogy
M.M. Beteeva
candidate of history study
Gorsky state agricultural university
Vladikavkaz, Russia
FROM THE HISTORY OF COURT PROCEDURE
IN COMMON LAW OF OSSETIANS
[Из истории судопроизводства по обычному праву осетин]
An analysis of the legal institution of the court and customary law is carried out aiming at regulating the relationship of the Ossetian community. Normally, the legal court of Ossetians can be characterized as an intermediary,
which corresponded to the nature of the territorial and community device of Ossetians. By comparison and analysis
concluded that the hallmarks of court mediation, as opposed to the trial were the following signs: mediation was
used only on the basis of voluntary consent of the parties, the parties had the right to choose a mediator, mediation is
confidential and was not of a formal nature. The main function of the Ossetian court is to mediate between the warring parties, reconciliation of blood feud and the establishment of compensation for damages, especially in cases of
blood, where revenge often gave way to financial compensation for blood.
Key words: customary law, Ossetians, mediation, mediator, vendetta, taerhon, taerhony, laegtae, oath.
In public life the Ossetians long time remained remnants of the tribal system, and therefore
the proceedings based on the law (adat), established in antiquity. Issues such as the fight between
the families (yards, patronymic, surname), conflicts over land tenure, blood feuds, and others.
Ossetia resolved on the People's Assembly – Nykhas (so-called, and the place where the village
meetings). The main function of Nikhas, consisting of the adult male population of the community, was the settlement of disputes.
"In society, arranged on the basis of strict patriarchal beginning – wrote Pfaff – there is no
room for the establishment of special trial and punishment. The family judge is the father, in the
yard – the foreman of the yard, in the genus – genus foreman. These judges are dependent to a
greater or lesser extent by Nikhas and the elderly, have it the dominant voice. In such a primitive
court case dealt with and resolved in strict accordance of ancient tribal customs without any formalities and certain rules of justice "[6, p. 207].
Subsequently, in resolving disputes began to take part, not all older men names, but only
elected judges (mediators), to carry out their functions during the mediation (the way of settling
the dispute by engaging a third independent and impartial person, the mediator). Ossetian court –
taerhon and judges – taerhony laegtae. They could become a man not younger than 50 – 60 years
old, known for his wisdom, honesty, impartiality, knowledge of folk customs and respected.
With the emergence of feudal relations in South Ossetia, mediators have sought to face only
aldarskogo ruling class. They enjoyed unlimited powers of mediators and their verdict was a peremptory character.
AA Harutyunyan gives the following definition of intermediary (mediator) – as a person
involved in the conflict "between the person who has committed a wrongful act, and the person
who was the wrongful act injured, with the aim of reconciliation of the parties and to find a mutually acceptable solution for compensation for damage caused by the wrongful act as well as on
other issues ... based on voluntary will of the parties, and which may lead to legal consequences
for the parties ... "[1, p.12].
The distinguishing features of mediation from the trial include: mediation is applied only
on the basis of voluntary consent of the parties, the parties have the right to choose a mediator,
mediation is confidential and is not formalized, the short term, efficiency, the decision is made
by the parties with the participation of a third party and executed immediately.
Nominations taerhony laegtae offered by the plaintiff and the defendant. Before selecting
mediators both sides met with their relatives somewhere in the open air at a certain distance from
each other so that their conversation was not heard the opposing party. To send a proposal from
the defendant to the plaintiff and back chosen mediators (minaevar laegtae) of foreign honorable
people from 1 to 5 people, depending on the seriousness of the offense, and only after both sides
agreed to abide by the decision of the court, proceed to the consideration of the case.
The Ossetian court taerhony laegtae were usually three people, two of whom were from the
side of the plaintiff. When proceedings important cases, such as in the case of murder or where a
lawsuit led the whole family, the number of taerhony laegtae increased, but here the plaintiff had
on one judge more than the perpetrator, and each of the parties to choose the judges from among
their number.
The basis of the judgment taerhony laegtae assessment was based on the very fact of dispute, conflict or crime, which has become the subject of court proceedings and not the evidence
collected in the case – the questioning of the parties and their witnesses, circumstantial evidence
attraction. Addition to the obvious fact serves as the statement of the injured party.
The recognition of the judges of the defendant's guilt on the basis of circumstantial evidence and testimony could convict displease the position and the role of mediators, which threatened to develop into a blood feud. Judges, who relied heavily on his own experience and the
conviction of guilt or innocence of the defendant, could draw the disaffected party feud, deprive
yourself of public trust by adopting biased or wrong decision, so they had to proceed with caution and prudence, trying to achieve the most faithful and just solution.
According to AS Haxthausen, "each party selects three heads of families are not in a close
relationship with them, and the six selected seventh – chairman. Court solemnly promise commits both parties that they submit to his sentence, which from each side should be represented by
three of the guarantor. Court pole driven into the ground – a symbolic sign that the parties should
strictly keep the contract "[3, p. 88].
After the party through intermediaries telling each other who chose the judge and that they
agree with the choice of the judges proceeded to the proceedings.
As a place of justice in the cemetery and used Ossetia Dzuar, due to fear cheat, lie in sacred places. "A characteristic feature of the ancient court taerhony laegov – writes N. Mansurov
– it was circumstance that the court listened to the litigants, made the process of the trial and the
sentences pronounced certainly cemeteries or, in extreme cases, in the houses of family of the
saints –" Dzuar "What causes fear Ossetians speak the truth in the presence of deceased ancestors or Dzuar, blind worship which represents the chief and necessary accessory Ossetian beliefs" [5, p.2].
The actions of the Ossetian court was guided only adat, due to the absence of written codes
and laws. "Adat – writes GT Liahveli – is usually the norm with the force of habit: the rate of
long, apparently under the influence of historical circumstances that arose among the people, and
then lit for centuries, it is rooted. Such adats not very much, they had to know each assessor
drevneosetinskogo court and for them to solve the case, but not in matters important to act very
own experience and diligence taerhony laegtae "[4, p.36].
To detect the culprit People's Court gave the rights of victims to resort to the help of witnesses, who were divided into dokazchikov (komdzog) and just witnesses (aevdisaen). Komdzog
was obliged to prove the guilt of the accused. He was a public prosecutor. Others witnesses
(aevdisaentae) mainly represented by circumstantial evidence.
Komdzog the people is always a bad reputation. "Craft dokazchika Ossetians – wrote Pfaff
– a despicable thing ... The radical Ossetian and generally patriarchal process of evidence
through witnesses, in comparison with other evidence, has a very secondary importance. There-
fore, in a patriarchal way of life there is no place for investigative proceedings, mainly on the
testimony ... In anticipation of the need to give testimony at the trial, most are leaving their village and spend some time visiting with friends until the matter is not over "[6, p. 208].
In cases where the evidence komdzoga and aevdisaena was not enough, the court appointed the defendant oath (ARD). "In the legal life of Ossetians – he writes DZ Shana – Oath (ARD)
is one of the most prominent places in the ranks of those actions, the collection of which is in
fact customary law Ossetians "[7, p.37].
The oath was a proof remedy, an opportunity to justify the trial. "The purpose of this ritual
as a judicial proof – eliminating the dispute" [8, p.37]. The oath is pronounced in the presence of
2 – 3 immediate family, which, in turn, had to vouch for the defendant's oath.
"Prior to the oath, – says Pfaff – relatives, knowing what they are taking responsibility for
the accused, in the circle of family and the families in the council of old men carefully and in
detail investigate the whole thing, if you are not guilty of a relative, and if at the defendant deserved the respect to the circle of his family and clan, feel free to take on this heavy oath. Everyone was afraid to give a false oath not to lose the trust and respect of society "[6, p. 214].
Taking the oath by the defendant and his family (prisyazhnikami) justifies it in court. In
turn, the oath prosecutor denounced the defendant and he had to meet the demands of the victim
by a court decision.
"Acceptance or rejection of the oath as much depends on the accused, and how much of it
prisyazhnikov if they were appointed by him. As soon as one or two of prisyazhnikov renounce
the oath not to take it as an excuse for the accused, "an oath not to eat" as the Ossetians to the
oath was considered a "failure to take uneaten" and to get the answer of the defendant as a defendant ... In important cases (in cases of murder, blood, rape, major theft, etc.) The date and
place of the oath were made aware how relatives and friends of the victim and prisyagopriimtsa
who converged at the appointed place, fully armed. Both parties become distant from places oath
one the one hand, with each other. In the middle of becoming outsiders, which is responsible for
disarming the relatives on both sides. These same people were witness taking the oath, they eliminate the possibility of a collision between the parties in the event of any confusion concerning
the oath. Then appeared the victim, followed with his prisyagopriimets prisyazhnikami. Stands
before Dzuar with a stick in his hand, or with a previous head cap. Direction Dzuar solemnly and
loudly recited the oath in his name. Then prisyagopriimets rushes forward wand in his hand. The
wand has served on the national concept, prisyagopriimtsu means removal from the terrible consequences of the oath itself and its neighbors; They believed that the oath addressed to a stick.
By decision of the oath by the accused all numerous meetings, leaving it in place quickly removed there and go home. For two weeks after that, they tried not to meet with sworn, because
he was convinced Ossetians drew strength not only false oath against himself and his fellow
man, but also against every member of society, who first meet him on acceptance of false swearing "[7, p. 6].
Oath of two kinds: a) a positive oath - oath recitation of folk deities and saints in the
broadest sense of the word; b) fydkaend – dedication to the dead reptiles and carrion. Abusive
oath feared that Dzuar can punish him. For zamalivaniya took beer, three pies with cheese and
went to a nearby grove of trees, where silence pray: "Unworthy thy servant did not fulfill the
debt, which was given him fydaeltae (ancestors), and unworthy mouth defiled thy holy name,
violating the oath; therefore it was imputed to him in sin and accept the sacrifice cakes and
mysaynag (threads of silk, which enveloping trees holy grove). " After this brief prayer dishes
eaten, and the respondent returned home, believing himself already free and uninsurable God's
wrath.
Ossetians have existed oath in the name of God (Huytsau), but because Christianity in
those days not taken root in South Ossetia, the oath to God is not widespread.
The first race of the oath and the oath killed belonged, which was as follows. A person
suspected of murder, when numerous crowds, accompanied by one or soprisyazhnikov had come
to the tomb of the deceased, to take up his monument with one hand and say: "The dead! If any-
thing, I was involved in your murder, but you'll be the horse in the next world. " Then he went
around three times the grave of the deceased. The oath referred to the self-initiation
(hifaeldisaen). To make such an oath more difficult prisyagopriimtsu worn around the neck with
the blood of the animal intestine, called the red gut and leading him around the tomb intestine
stabbed with daggers to her from bleeding, were forced to utter the same phrase.
"An important role in the proceedings of the Ossetians – writes GT Liahveli – takes the
curse (anathema Ossetian" faeldisyn "). It consists in the fact that the defendant takes the stick,
sticks it in the ground and covered her with his fur cap openly he says: "May I faeldyst (dedicated to the most shameful of the dead), if I have committed such and such a thing. Yes, I will be a
horse in the world to anyone if I am guilty! "[4, p.6]. Faeldyst recognized the most reliable
means of justification.
In many places Ossetia existed more serious oath. The suspect of a felony believed in the
oath: "Yes I was made a knight of the dead is" and forced to swear "yes did I tsyftaeraenbaeh" (a
horse to ride in the mud). It is the most important kind of oath, which go in any case can not be.
The attacker oath bound hands and poured water on his head, solemnly delivering his curse
(faeldisaen) with the words "Made horse dead kinsmen in the other world."
The most terrible oath was considered a given in lauzgaenaen (one of the holidays of All
Souls). This holiday is so important that all questionable (unsolved) case was adjourned until
lauzgaenaena when incriminating sworn his innocence and was freed from all suspicion. In
lauzgaenaen gather all the inhabitants of the village memorial to the cemetery. There, "in the
presence of the living and the dead" who suspects someone of those present of stealing his things
or killing of his relatives, the suspect leads to the tomb of the deceased and makes him swear to
his innocence. He swears by declaring that it is not to blame, or if blame and lied, then so be it,
and all his family killed by slaves in the other world, for perjury.
The second kind of oath – fydkaend – dedication deceased relatives suspect various dirty
tricks. The memory of the dead for every Ossetian was a saint, and dedication to the abominable
thought the dead animal abuse. Fydkaend is as follows: the victim in a public place at a crowd of
people on the ground in the impacted number of cats or dogs hung and shot, dedicating their deceased thief who avoid such a shame confessed to the crime.
To stop the hostility and enemies of the armistice offered their services as mediators, representatives of two other strong names ("Styr myggag" or "tyhdzhyn myggag"). In case of violation of the armistice agreement, the guarantors were to give the best of his name in for the inviolability which they vouched, otherwise victims had the right to kill a dog (desecrate) in their family vault.
Failure to comply with a court judgment, the violation of the oath adjusts the whole community against the defendant, and drew him exile. It is clear that these measures were sufficient
to ensure the execution of the sentence. As a judge is now the whole community in the person of
its meeting – Nikhas. Therefore, knowing what will happen to the defendant, the court sentenced
to community person was forced to submit to its decisions.
We can conclude that the main function of the Ossetian court was mediating between warring parties, reconciliation of blood feud, and with it the establishment of the amount of compensation for damages, especially in cases of blood, where revenge often gave way to financial
compensation for blood.
References
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3. Haxthausen A. Transcaucasian region. Part II. St. Petersburg, 1857.
4. Liahveli G.T. ancient Ossetian court // Legal Review. Tiflis, 1886.
5. Mansurov N. Ordinary court Ossetians // newspaper "Caspian», 1894. № 38.
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Ossetians. Book 7. Comp. LA Chibirov. Vladikavkaz, 2014.
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Энциклопедический
словарь
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и
И.А.
Ефрона
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