Some Aspects of the Transformation of Constitutional Legal Norms

Legal Concept ◽  
2021 ◽  
pp. 96-105
Author(s):  
Marina Mokoseyeva ◽  
Keyword(s):  
Public Relations ◽  
Constitutional Court ◽  
Russian Science ◽  
Legal Norms ◽  
Judicial Practice ◽  
New Type ◽  
The Russian Federation ◽  
Transformation Processes ◽  
Law Making

Introduction: the Russian doctrinal sources have been noting the formation of a new type of law-making for several years. It differs from other types in that amendments and changes to the constitutional norms are made without their direct changing. This type of law-making is called “transformation of constitutional norms”. The purpose of the study is to formulate the concept of transformation of constitutional norms and to identify the specific features and distinctions of this legal phenomenon. Methods: the methodological framework for the study is a set of methods of scientific knowledge, among which the main ones are the methods of comparison, analysis, and generalization of legal material. Results: the author’s position on the need to determine the features, limits, and distinctions of this institution in Russian science is based on the study of the modern legislation, as well as a large number of examples from judicial practice. Based on this approach to the study of legal material, the very concept of transformation of constitutional norms was studied, the ambiguities of the transformation processes were identified, and the features and limits of transformation were formulated. Conclusions: as a result of the study, the role of transformation as a regulator of public relations and a new type of law-making is revealed. The features, signs, and limits of the transformation of constitutional norms are established through the analysis of examples in the judicial practice of the Constitutional Court of the Russian Federation. It is determined that the transformation is temporary, can fill a legal gap, and has a specific mechanism of implementation, which is due to special forms of transformation (interpretation, application of legal positions, ratification, and implementation).

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 Sources of Formation of Legal Positions of Russian Highest Judicial Bodies

2021 ◽  
pp. 130-142
Author(s):  
Mariia Viktorovna Globa
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Legal Doctrine ◽  
Judicial Practice ◽  
Legal Method ◽  
The Supreme Court ◽  
The Russian Federation

The present study is devoted to determining the place and role of legal positions of higher judicial bodies of Russia (judicial legal positions) in the mechanism of legal regulation. Let us specify in advance that the author means the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation (taking into account the 2014 amendments made to the legislation concerning the liquidation of the Supreme Arbitration Court of the Russian Federation) as the higher judicial bodies of Russia. Establishing the meaning and role of judicial legal positions in the mechanism of legal regulation is carried out by the author of this study through the analysis and demonstration of the main sources of formation of legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. In this regard, the author of this work identifies as sources of formation of judicial legal positions: legal and non-legal. Non-legal sources of formation of legal positions of the highest courts of Russia differ from the legal ones in the fact that initially they do not have material expression, exist in the abstract, however, have no less importance for the process of formation of judicial legal positions. To the legal sources of creating legal positions of the highest judicial bodies of Russia the author includes: formal sources of law, current legal practice, legal doctrine. As non-legal sources of formation of legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation are: the inner conviction of a judge and professional legal consciousness of a judge. The author of this scientific research consistently reveals the importance and role of each source of formation of judicial legal positions. The conducted study of the most significant sources of formation of judicial legal positions allowed to better understand the place of legal positions of higher courts of Russia in the legal system and their role in legal regulation, which is reduced not just to the interpretation of judicial acts, but also to the formation of new legal provisions, which ultimately form a uniform judicial practice. Methodological basis of the study consisted of: analysis, synthesis, comparative-legal method, deduction, induction and other ways of knowledge used in science. Scientific conclusions and proposals contained in this work may serve as a basis for further theoretical study of the problems of judicial legal positions and used in the activities of legislative and law enforcement bodies.

scholarly journals LAWMAKING ACTIVITY OF TERRITORIAL ENTITIES OF THE RUSSIAN FEDERATION: PROBLEMS AND SOLUTIONS

2017 ◽  
Vol 2017 (2) ◽  
pp. 95-99
Author(s):  
О. Рыбаков ◽  
O. Rybakov ◽  
О. Рыбакова ◽  
O. Rybakova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Constitutional Court ◽  
Legal Doctrine ◽  
Problems And Solutions ◽  
The Russian Federation ◽  
The Law ◽  
Legal Expertise ◽  
Law Making

<p>The article features an analysis of lawmaking activity of territorial entities of the Russian Federation, while focusing on some problems of regional normative legal acts. The authors define the role of legal expertise as one of the key elements of the regional law-making activity providing unity and integrity of the law over the whole territory of the Russian Federation. The analysis of the concept of “legal expertise” due to the regional regulations is given in the article, as well as its types and its essence. The authors examine different trends and approaches to the nature of the normative legal act due to the Constitutional Court of the Russian Federation practice, as well as in legal doctrine and legal law enforcement practice.</p>

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.

The Role of the Russian Constitutional Court in Achieving Certainty of the Criminal Law Prohibition

2020 ◽  
Vol 6 ◽  
pp. 93-100
Author(s):  
Z. А. Magomadova ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Constitutional Court ◽  
Judicial Practice ◽  
Absolute Certainty ◽  
The Russian Federation ◽  
Legal Meaning ◽  
The Way

The article explores the activities of the Constitutional Court of the Russian Federation as a means of achieving certainty of the criminal law prohibition. Three approaches to «reduce» uncertainty are considered (wherein, the impossibility to reach absolute certainty is proclaimed). The author proposes to distinguish three such approaches enforced by the Constitutional Court: 1) recognize the contested provision as compliant with the Constitution of the Russian Federation (through a «refusal» ruling); 2) to indicate the constitutionality of the norm, while revealing its obligatory legal meaning (thus, correcting not the rule itself, but the practice of its application); 3) to decide the unconstitutionality of the normative act examined in the process of constitutional production in whole or in part. It is argued that the way to «reduce» uncertainty, by adjusting judicial practice, cannot be considered efficient with the preservation of an uncertain norm defective in its core (the criminalization of the act was made unreasonably).

scholarly journals HENRI LÉVY-BRUHL’S DOCTRINE ON LAW AND ON THE FORMATION OF LEGAL SCIENCE OF A NEW TYPE

2017 ◽  
Vol 3 (4) ◽  
pp. 58-66
Author(s):  
Владимир Пужаев ◽  
Vladimir Puzhaev
Keyword(s):  
Scientific Discipline ◽  
Sociology Of Law ◽  
Legal Anthropology ◽  
Legal Doctrine ◽  
Judicial Practice ◽  
True Source ◽  
History Of ◽  
New Type ◽  
History Of Law

The article is devoted to the investigation of legal ideas of Henri Lévy-Bruhl, a French lawyer and sociologist of the XX century, who is considered to be one of the founders of contemporary sociology of law, legal ethnography and legal anthropology. The author of the article analyzes the late articles of Henri Lévy-Bruhl. The author of the article examines the notion “juristique”, introduced by the French professor, and investigates its methodological and substantial peculiarities. As a scientific discipline, “juristique” was supposed to be shaped through the integration of sociology of law, history of law and comparative law into a body. The author also pays special attention to H. Lévy-Bruhl’s theoretical views on the question of law and mechanisms of its formation, on subjects of law-making and sources of law. In particular, the author considers Lévy-Bruhl’s views of collective opinion as the only true source of law, customs’ priority over legislation among all forms of law, judicial practice as the modality of a custom. The key role of Durkheim’s sociology in the shaping of Henri Lévy-Bruhl’s legal views is also highlighted. Henri Lévy-Bruhl’s particular ideas are compared with the doctrine of historical school of law. The final part of the article is devoted to formulating a series of theses which reflect the peculiarities of Henri Lévy-Bruhl’s legal views and his role in contemporary legal doctrine.

scholarly journals Legal Mechanisms for Protection of Migrants' Rights by the Public Authorities of the Russian Federation

2018 ◽  
Vol 9 (4) ◽  
Author(s):  
Ksenia Minakova
Keyword(s):  
Russian Federation ◽  
Migration Policy ◽  
Constitutional Court ◽  
Special Role ◽  
Public Authorities ◽  
Normative Documents ◽  
The Public ◽  
The Russian Federation ◽  
Migrants Rights

The article analyzes methods of ensuring the migrants rights by the public authorities of the Russian Federation, the individual elements of the migration policy of the Russian Federation relating to the activities of public authorities. It considers the activities in the field of protection of the migrants rights by such authorities as the Russian President's Office for Constitutional Rights of Citizens, the Presidential Council for Civil Society and Human Rights, the Council for Interethnic Relations, General Directorate for Migration, Chief Directorate for Migration Issues of Ministry of Internal Affairs of the Russian Federation, their normative documents, that regulate their activities. It examines separately the activities of the RF Government in the field of protection of the migrants rights, as well as judicial authorities; it identifies the special role of the RF Constitutional Court in the field of ensuring the rights of migrants, refugees, the internally displaced and stateless persons. It underlines the role of authority bodies of the RF entities in ensuring the migrants rights in terms of Irkursk Oblast. The article offers to differentiate strictly the role of each authority body in the field of migrants rights protection, as well as to pay specific attention to regulation of activities of the FR entities authority bodies in this direction.

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

Sign in / Sign up

Export Citation Format

Share Document