Legal precedent in the Russian Federation: to be or not to be?
The report is devoted to the concept of a judicial precedent in the Russian Federation, since it is an issue of high importance resulting in widespread hot discussion among specialists. Judicial precedent is known as a part of court holding with regard to a particular case when solving a case. Special aspects of a precedent put in question the possibility of its effective exercise in civil law countries. However, some specialists argue that the current judicial power already carries on the law-making responsibility, mostly represented by the Constitutional Court of the Russian Federation.
The supporters of recognition of a precedent as of a source of law in civil law countries specify the marks, which an act should bear in order to become a precedent in Russia. Moreover, since sub-sovereign entities of the Russian Federation interpret the law following no particular pattern, it is obvious that the main objective of recognition of a precedent as of a source of law is to achieve uniform application of laws in the sub-sovereign entities of the Russian Federation. Among the facts that the opponents of recognition of a precedent in Russia name to substantiate their position are the absence of exact applicability, or duration of a precedent contrary to civil law countries and incompliance of a precedent with the theory of separation of powers which dominates in civil law countries.
Year by year, judges are increasingly taking into consideration the decrees of the Constitutional Court to rationalize their positions. However, the final word rests with provisions of law. Such an approach allows to establish balance between the judicial legislation and the theory of separation of powers. For the time being it is impossible to talk about recognition of a precedent as of a source of law in the Russian Federation. Neither can we maintain that the Constitutional Court has absolutely no law-making responsibilities.
Giving legal recognition to a precedent in Russia would mean crucial turnabout in the method of thought of the Russian law. Thus, at the present day we may only think of the nearest equivalent to a precedent term which would accent the special aspects of legal views of the highest bodies of judicial power and, mainly, of the judgments of the Constitutional Court of the Russian Federation.
А. Е. Кононова
|Опубликовано 09.01.2020 13:20 | Просмотров: 62 | Блог » RSS|