THE MECHANISM OF IMPACT OF JUDICIAL PRACTICE ON LEGISLATION: ARTICULATION OF THE ISSUE IN THE MODERN THEORY OF LAW-MAKING

Author(s):  
Maria Andreevna UDODOVA ◽  
10.12737/2067 ◽  
2013 ◽  
Vol 1 (5) ◽  
pp. 254-258
Author(s):  
Татьяна Парфенова ◽  
Tatyana Parfenova

The article is devoted to the concept and types of legislating in the modern theory of law is studied here. The problem of determining the legislating process as an activity directed on creation of the legal act called the most significant element of the structure of existing law is also risen here. Such approach is explained by the feature of the Romano-Germanic law, which by its nature and character is a statutory law, led by the main law. Relying on comparative researches, the article discusses in detail the form of legislating directly related to the activities of the State law-making, by-laws making and judicial legislating. Legislation for the Romano-Germanic law, due to the postulates based in the Roman law, is one of the most significant kinds of legislating. A very important role, along with legislating plays by-laws creating, otherwise legislating of the executive bodies. Analyzing the controversial issue of judicial legislating in the Roman-Germanic legal family, the author points out the different role of the court depending on either Roman or German group is ment. For the Roman legal family court practiceis a source of law, which is the most significant. The article concludes the overview of the forms of legislating related to the activities of the state indirectly. These include contract legislating and legislating of legal custom.


Author(s):  
Вадим Павлов ◽  
Vadim Pavlov

the article deals with the development of the modern theory of law-making process. The main changes that took place in the sphere of law-making in the post-Soviet period are analyzed. The importance of the use of such a modern law-making tool as regulatory impact assessment is considered. The analysis of the process of lawmaking from the perspective of anthropology of law is offered. The rule of law and its normativity in the anthropological approach do not precisely express the essence of law, but are only its substantive basis. The essence of law is necessarily expressed with the participation of a person in law, a subject involved in legal interaction. In addition to the rule of law and human rights in law, the third element of legal reality is significant – the fact of legal life, which reveals both the normative properties of the legal system, and reveals the legal properties of a person in law. Thus, in the anthropological approach, the rule of law and the normativity of law in comparison with the classical theory of law-making acquire a new meaning, characterized by the fact that in a General sense it can be called anthropologization of law, the acquisition of its human dimension. On this basis, the theory and practice of lawmaking should focus on the development of the doctrine of the interpretation of law, as well as on the practice of its implementation.


2020 ◽  
pp. 98-106
Author(s):  
V. V. Levin

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.


2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  

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).


2009 ◽  
Vol 34 (3) ◽  
pp. 211-238
Author(s):  
Sergei Iu. Marochkin

AbstractIn this article, the author discusses the problem of ensuring equality and non-discrimination in a legal system. Equality and non-discrimination constitute universally recognized standards in the protection of human rights. At the same time, one can hardly assert that the universal community has put an end to discrimination. The author considers the problem as applied to the Russian legal system. The standard is incorporated in the Russian Constitution still remains topical in Russia. Based on his analysis of legislation and judicial practice, the author concludes that the problem reveals itself on the levels of both law-making and law application, the latter including administration of justice. As one of the conclusion, the author raises a question: is legal discrimination inherent in a legal system like other negative phenomena, such as delinquency, incoherencies, lacunas, defects, conflicts of legal norms and breaches of law-making procedural rules?


2020 ◽  
Vol 45 (2-3) ◽  
pp. 200-216
Author(s):  
Marek Zirk-Sadowski

This paper presents Jerzy Wróblewski’s (1926–1990) theory of law. He was an eminent Polish legal philosopher. His philosophical minimalism, anticognitivism, relativism and moderate reconstructivism constitute the basis for analytical theory of law in Poland. He was developing his theory of law over the span of several dozens of years but the assumptions were formulated already in his first work on legal interpretation published in 1959. His paradigm of legal theory includes several areas: the theory of the legal norm, theory of legal interpretation, theory of the legal system, theory of application of law, theory of law-making and the methodology of legal sciences.


2020 ◽  
Vol 29 (3) ◽  
pp. 163
Author(s):  
Yachiko Yamada

<p>This paper examines the role of judicial jurisdiction in law-making process in statute countries. The analysis focused on the reformed Japanese Civil Code, which entered into force on 1 April 2020, and more specifically on the conflict between the reformed Civil Code and the precedents of previous legal status. The purpose of the paper was to emphasize that it is extremely important to consider the relationship between new rules and previous precedents. By using the reformed rules of “contract for work” in the Japanese Civil Code reform, this article analyzes and explains the meaning of precedent in law-making process.</p>


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