Judicial Practice Impact on Law Making

2016 ◽  
Vol 4 (4) ◽  
pp. 0-0 ◽  
Author(s):  
Tatyana Shubert
Keyword(s):  
Russian Federation ◽  
System Analysis ◽  
The State ◽  
Constitutional Court ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Legislative Initiative ◽  
Business Entities ◽  
The Right ◽  
Law Making

The article discusses the role of judicial practice in legislative drafting activities, judicial precedent as a source of law, analyzes the problem of revealing legal gaps and contradictions in the current legislation. The author stresses the need for clarification of the term the “right to legislative initiative of the Constitutional Court and the Supreme Court of the Russian Federation on issues within their jurisdiction”, and proposes a mechanism for accounting court practice during consideration of draft laws. The author submits the proposal on the adoption of the Federal Law “On Regulatory Legal Acts in the Russian Federation”, which, in the author’s opinion, will permit to overcome legal conflicts between the law and other regulatory legal acts and will create a solid legal framework for law-making and lawenforcement processes, will contribute to the prevention of infringement of legality in the activities of state bodies, business entities and other organizations, and strengthening the guarantees for realization of citizens’ rights and legitimate interests. Besides, the author proposes to amend the State Duma Regulation by adding the provision that when introducing the draft law to the State Duma, the subject with the right of legislative initiative must submit the materials containing system analysis and judicial practice trends regarding the regulation of the draft law in question.

Features of Judicial Practice in the Russia as the Basis of Precedent

2020 ◽  
pp. 98-106
Author(s):  
V. V. Levin
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Armed Forces ◽  
Case Law ◽  
Constitutional Court ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Law Making

The article is devoted to the analysis of judicial practice as the basis of law-making activity in the Russian Federation, on the basis of which it is possible to create a precedent. Case law in Russia is Advisory in nature and is not mandatory for law enforcement practice. Courts use the signs of case law in their decisions in the reasoned part. Signs of case law is a ruling of the constitutional court of the Russian Federation and regulations of the armed forces of the Russian Federation.

Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities

2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Russian Federation ◽  
Separation Of Powers ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Business Entities ◽  
Law Making

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).

scholarly journals Sovereignty in a Federal State: Theoretical and Legal Bases and Practice of Implementation in Russia

2020 ◽  
pp. 13-26
Author(s):  
Andrei V. Bezrukov ◽  
Andrey A. Kondrashev
Keyword(s):  
Russian Federation ◽  
Armed Forces ◽  
Fundamental Principle ◽  
The State ◽  
State Sovereignty ◽  
Federal State ◽  
Constitutional Court ◽  
Potential Threat ◽  
The Russian Federation ◽  
The Right

The article raises the issue of state sovereignty in a federal state and reveals its legal nature. The authors draw attention to the diversity of approaches to the concept and essence of sovereignty, reveal its correlation with related categories, describe the concepts of unity and divisibility of state sovereignty. The paper proves that sovereignty is not a quantitative, but a qualitative characteristic of a state, which is either present or not. The authors substantiate the exclusive possession of state sovereignty by the Russian Federation. Based on the analysis of the doctrinal, regulatory sources and the practice of the Constitutional Court of the Russian Federation, the authors show that the Russian constitutional model explicitly outlines the principle of solid and indivisible state sovereignty spreading throughout the whole territory of the Russian Federation. Recognition of the principle of state sovereignty of Russia presupposes a clear definition of the scope of rights that the Federation should possess in order for its sovereignty to be ensured. The article examines the main features of the state sovereignty of Russia enshrined in the Constitution of the Russian Federation, among which are the supremacy of federal law over the law of the subjects of the Federation, the inviolability of borders and territorial integrity, the unity of the economic space, fiscal, banking and monetary systems, common army (Armed Forces), the right of the state to protect its sovereignty and rights of citizens. Despite the unequivocal decision on the integrity of state sovereignty of the Russian Federation expressed the Constitution of the Russian Federation and by the Constitutional Court of the Russian Federation, this fundamental principle is not completely ensured since the idea of the sovereignty of the republics as components of Russia continues to retain its potential threat to Russian federalism, taking into account the provisions of Art. 73 of the Constitution of the Russian Federation that provide for the full state power of the constituent entities of the Russian Federation

Dual Citizenship in Russia

2019 ◽  
Vol 76 (1-2) ◽  
pp. 57-68
Author(s):  
Alexander Salenko
Keyword(s):  
Russian Federation ◽  
State Policy ◽  
Constitutional Court ◽  
International Treaties ◽  
Dual Citizenship ◽  
Judicial Practice ◽  
Russian State ◽  
Domestic Legislation ◽  
The Russian Federation ◽  
The Right

In the USSR, the dual citizenship was expressly prohibited by the Soviet law. After Perestroika, a new stage of Russian statehood began: on 12 December 1993, the Constitution of the modern Russian Federation was adopted, which granted Russian citizens the right to have dual citizenship. Over the past twenty-five years, a new legislation has been adopted on the Russian citizenship, migration, and the state policy regarding compatriots living abroad. During these years, millions of Russian citizens have obtained second (multiple) citizenship, and with it came to questions, disputes and problems that required mediation of the Russian judiciary. In this regard, the main purpose of this article is to analyze the existing domestic legislation and international treaties of Russia on dual citizenship, to determine the dual citizenship regime in Russia - to examine the existing restrictions on the rights and freedom of persons with dual citizenship, and also to study the disputes on dual citizenship in the Russian Federation, in particular to scrutinize the judicial practice (leading cases) of the Constitutional Court of the Russian Federation. Based on an analysis performed in the article, the author draws conclusions regarding the further development of dual citizenship within the framework of the Union State of Belarus and Russia, and also investigates prospects of the Eurasian citizenship in the framework of the Eurasian Union. In addition, the author makes a proposal to Russian authorities to make information on registered Russian citizens with dual (multiple) citizenship more accessible and transparent, and also to adopt at the federal level a document on the Russian state policy regarding dual citizenship.

Issues of Superion Courts of the Russian Federation when Implementing the Legislative Initiative

2020 ◽  
Vol 10 ◽  
pp. 32-41
Author(s):  
N. G. Stenichkin ◽  
Keyword(s):  
Russian Federation ◽  
Separation Of Powers ◽  
Practical Implementation ◽  
Legislative Process ◽  
Constitutional Court ◽  
Legal Method ◽  
The Russian Federation ◽  
Legislative Initiative ◽  
The Law ◽  
The Right

The problem. The concept of «issues of reference» is used in the Constitution of the Russian Federation when listing the subjects of the law of legislative initiative in relation to the judiciary. The legislation does not disclose or define this concept, which leads to discussion about its content and, as a result, raises questions about the practical implementation of the separation of powers principle in the legislative process. Aims and objectives of the study: we determined the limitations of the law of legislative initiative of the higher courts of Russia from the point of view the legal grounds for such restrictions, their subjects and legal consequences. Methods: we use both the common scientific methods (e. g. systemic, deductive) as the special-legal methods (formal, dogmatic, state-legal modeling method, comparative legal method etc.). Results: we conclude that «issues of reference» is a special constitutional legal term used in the Constitution of the Russian Federation to describe all functions of the certain branch of power or the public authority. This term in its content is broader than the concepts of «authority», «subjects of jurisdiction» and «jurisdiction». The use of the term «issues of reference» towards the higher courts, as subjects of the right of legislative initiative, does not allow us to assert the constitutional sense of existence various types of legislative initiative right, such as general right and limited (special) right. The practice of exercising the right of legislative initiative by the higher courts, as well as the applying the Procedure Rules of the State Duma of the Russian Federation does not provide for any restrictions on the right of courts to initiate bills. Russian legislation lacks mechanisms for applying the term «issues of reference» as an instrument restricting the constitutional right of the higher courts to participate in the legislative process. Also, such mechanisms are not reflected in the regulatory framework governing the activities of the higher courts. The term «issues of reference», applied to the legislative initiative right of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, does not imply any exemptions from the right to initiate bills given by the Constitution to other entities, but this term is used in the delimitation of legislative functions between the higher courts.

scholarly journals Appealing against Decisions on Reimbursement of Procedural Costs Made in accordance with Part 3 of Art. 131 of the Criminal Procedure Code of the Russian Federation

2021 ◽  
Vol 16 (11) ◽  
pp. 155-166
Author(s):  
S. R. Zelenin
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
The Body ◽  
Constitutional Court ◽  
Judicial Practice ◽  
Procedural Costs ◽  
The Russian Federation ◽  
The One ◽  
Judicial Procedure ◽  
The Right

The legality and validity of the decisions of the investigator, inquirer and the prosecutor on the payment  of the amounts related to procedural costs remain problematic due to the absence in the law of a mechanism  ensuring the judicial procedure for their appeal.  In order to fill this gap, the author studies the possibilities of introducing a procedure similar to the one enshrined  in Art. 125 of the Code of Criminal Procedure of the Russian Federation. The paper analyzes the positions of the  Resolution of the Constitutional Court of the Russian Federation No. 18-P dated May 13, 2021. It concerns the  victims’ appeal against the decisions of the investigator and the head of the investigative body regarding the  reimbursement of expenses for a representative. Some examples of judicial practice for resolving other disputes  related to the reimbursement of procedural costs are also analyzed.  It is concluded that the right of a person claiming to receive the amounts provided for in Part 2 of Art. 131 of the  Code of Criminal Procedure of the Russian Federation against a judicial appeal made at his request is universal  and does not depend either on his status in a criminal case, or on the type of the indicated amounts, or on the  body or official that made the contested decision.  Taking into account the practice of applying other norms on appealing against decisions of the investigating  bodies, it was proposed to introduce Art. 125.2. The author formulate its content given the characteristics of the  participants in the proceedings and the powers of the court to resolve the complaint.

THE RIGHT OF LEGISLATIVE INITIATIVE IN THE SYSTEM OF POWERS OF THE RUSSIAN FEDERATION CONSTITUTIONAL COURT

2021 ◽  
pp. 46-52
Author(s):  
Dmitrii V. Zmievskii
Keyword(s):  
Russian Federation ◽  
Point Of View ◽  
Constitutional Court ◽  
Special Role ◽  
Supreme Courts ◽  
Federal Constitutional ◽  
The Russian Federation ◽  
Legislative Initiative ◽  
Control Body ◽  
The Right

The article considers the right of legislative initiative of the Constitutional Court of the Russian Federation enshrined in the Constitution of the Russian Federation in the light of amendments made to the Fundamental Law of our state in 2020, as well as subsequent updating of special federal constitutional legislation. It is noted that the problem of practice deficiency in implementing the mentioned power by the Constitutional Court of the Russian Federation is not new for the Russian legal science; in general, it is naturally determined and is due to a number of objective factors. However, the process of updating and developing the constitutional provisions on the supreme judicial control body of Russia and, in particular, creating the system of preliminary judicial constitutional control, bring the problem under consideration to a qualitatively new level. The approach itself in terms of granting the mentioned power to supreme courts in the Russian Federation is characterized as atypical for the countries near and far abroad. At the same time, the current lack of practice in exercising the power in question by the Constitutional Court is due to the special role of the latter in the system of supreme state authorities, in particular, the judiciary. The point of view is expressed that the problem cannot be unambiguously solved at the present stage of the statehood development. The author does not share the increasingly expressed point of view today that the right of legislative initiative should be excluded from the powers of the Constitutional Court of the Russian Federation, since this will lead to a violation of the equality of the constitutional and legal statuses of the two independent supreme judicial authorities. In addition, the shortcomings in the wording of certain constitutional provisions have been identified and possible ways to eliminate them have been proposed.

scholarly journals SOME ASPECTS OF THE PROSECUTOR'S PARTICIPATION IN REHABILITATION (IN ACCORDANCE WITH CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE OF THE RUSSIAN FEDERATION)

2020 ◽  
Vol 30 (5) ◽  
pp. 747-752
Author(s):  
A.I. Shmarev
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

The author of the article, based on the analysis of statistical indicators of the Prosecutor's office for 2018-2019 and examples of judicial practice, including the constitutional Court of the Russian Federation, examines the problematic issues of implementing the right to rehabilitation of persons unlawfully and unreasonably subjected to criminal prosecution, and the participation of the Prosecutor in this process. According to the author, the ambiguous judicial practice of considering issues related to the rehabilitation of this category of citizens requires additional generalization and analysis in order to make appropriate changes to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of 29.11.2011 "On the practice of applying the norms of Chapter 18 of the Criminal procedure code of the Russian Federation regulating rehabilitation in criminal proceedings". The examples given in the article of cancellation of lower-level court decisions were based on complaints of persons who independently sought to restore their rights, and not on the representations of the prosecutors involved in them, who were called upon to ensure the possibility of protecting human and civil rights and freedoms at the court session. The adoption of organizational measures, including those proposed by the author, in the system of the Prosecutor's office of the Russian Federation will increase the role of the Prosecutor in protecting the rights of illegally and unreasonably prosecuted persons.

scholarly journals The Topical Issues of Coding the Regional Social Security Legislation (On the Example of the Volgograd Region)

Legal Concept ◽  
2019 ◽  
pp. 90-96
Author(s):  
Tatyana Derkacheva
Keyword(s):  
Social Security ◽  
Russian Federation ◽  
Common Property ◽  
System Analysis ◽  
The State ◽  
Federal Law ◽  
The Social ◽  
The Russian Federation ◽  
The Law ◽  
Law Making

Introduction: social security is one of the most important elements of the social policy of the state. Many legal acts are adopted in the social security field. In order to ensure the uniform understanding and interpretation of the content of the normative legal acts in the social security field, their systematization as well as the practical application in the law enforcement process the regional legislators have codified the social security legislation in a number of subjects of the Russian Federation. Using the methods of scientific knowledge, especially the method of system analysis, it is found that the complexity of the problem involves the use of both the law-making and law-realization directions and forms of the legal adaptation of the current legislation of the state. The aim of the study is to conduct a comparative analysis of the social codes adopted in the subjects of the Russian Federation, to identify common approaches in the implementation of the law-making activities for the codification of the social security legislation. The system analysis of the law-making process on the codification of the social security legislation in the subjects of the Russian Federation allowed establishing that the adopted codes had significant differences in structure and content. However, having quite significant differences, the codes have a common property – each of them has one common characteristic – a special part of all adopted social codes is built on a categorical principle. Results: on the basis of the analysis some problems of the law-making activity of the regional legislators on the codification of the social legislation are revealed. Conclusions: 1) it is necessary to adopt a number of federal laws: a codified federal law defining the goals and objectives of the social legislation of the Russian Federation and the subjects of the Russian Federation, the federal law on the sources of law, on the delimitation of powers in law-making between the Russian Federation and its subjects; 2) to establish common principles for the country’s implementation of social security; 3) to develop a single conceptual framework that provides a single legal regime for regulating relations in the social security sphere; 4) to develop a model regional social code as a model for the regional legislators.

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