Basic principles and functions of law.

Under principles of law refers to fundamental ideas that are realized in the content and form of positive law (main guiding ideas, basic properties, requirements, features, spirit of law).

The principles reveal the essence of law and its significance for society.

The following principles of law are distinguished:

1. Principle justice(compliance of law with existing moral standards in society);

2. Principle democracy(democracy) (the law must express the interests of the majority);

3. Principle equality rights.

4. Principle humanism(philanthropy).

5. Principle freedom of subjects rights.

6. Principle legality.

7. Principle responsibility for guilt.

8. Principle mutual responsibility of the state and the individual.

9. Principle unity of legal norms.

10. Principle reality of legal norms.

Functions of law- these are the main directions of influence of law on society, through which the goals of law are realized. The essence of law is manifested in functions, as well as in principles.

Basic functions of law:

A) Social functions of law:

1. Economic - consolidating a certain type of production relations.

2. Political - consolidation of relations regarding power.

3. Ideological - consolidation of a certain ideology or, on the contrary, pluralism of ideas.

B) Special legal functions of law:

1. The regulatory function of law is to indicate, with the help of legal norms, necessary, prohibited or permitted behavior.

2. The protective function of law is the establishment of liability for persons who violate prohibitions and fail to fulfill obligations, and the protection of rights.

In order to take advantage of the rules of law in Everyday life, you need to know where to “look” for these norms, how they (the norms) are expressed and in what ways they exist.

Source (form) of law- is a way of expressing (formalizing) and consolidating the rule of law in objective reality.

In the world there are the following types of sources of law:

1. Legal act- a document issued by the competent authority of the state and containing the rules of law (laws of parliament, acts of the head of state, ministries and departments, etc.). This type of sources of law prevails in countries with a continental (Roman-Germanic) legal system (Russia, Germany, France).

2. Legal custom- this is a rule of behavior that arose and exists in society and to which the state has given legally binding force. This group should also include customs and customs that have developed in the practice of the economic and political sphere of life of the society of the corresponding state.

3. Judicial precedent- these are court decisions on a specific case, which acquire the status of a generally binding rule for resolving all similar cases for all subsequent courts. In other words, a judicial precedent is a kind of model for the court to resolve all similar cases in the future. Judicial precedent as a source of law is most common in countries with an Anglo-Saxon legal system (Great Britain, Canada, USA, Australia).

4. Administrative precedent- decision of an administrative body on a specific case. In the future, this case serves as a generally binding model for the resolution of all subsequent cases of the same kind.

5. Regulatory agreement - it is a treaty between two or more countries that contains generally binding rules of conduct. Such treaties are valid on the territory of the signatory states.

6. Scientific doctrine- this is a legal theory of a prominent lawyer that has generally binding force (a religious doctrine is a religious teaching that contains rules of law or from which they are derived through interpretation).

7. Religious sources (scriptures and books sacred to those professing a particular religion, such as the Koran, Sunnah, Ijma and Qiyas for Muslims). These sources of law are recognized as the main ones in countries with a religious legal system (Afghanistan, Iran).

Types of sources of law Russian Federation.

The main sources of law on the territory of the Russian Federation are regulations. The entire system of regulatory legal acts can be divided into three relatively independent, but interdependent subsystems.

1. Regulatory legal acts of federal bodies state power (President of the Russian Federation, State Duma of the Russian Federation, Federation Council of the Russian Federation, Government of the Russian Federation, etc.):

a) Constitution of the Russian Federation. It has supreme legal force, supremacy and direct effect throughout Russia. All other legal acts adopted on the territory of our country must not contradict the Constitution of the Russian Federation. The peculiarity of the Constitution of the Russian Federation also lies in the fact that it was adopted by a special subject - the people of Russia - in a national referendum on December 12, 1993;

b) federal constitutional laws are laws adopted in a special procedural manner (2/3 votes of deputies State Duma RF and 3/4 votes of members of the Federation Council of the RF) and only on those issues that are directly specified in the Constitution of the RF. For example, the Constitution stipulates that federal constitutional laws must be adopted on issues of referendum, states of emergency and martial law, citizenship, etc. An adopted federal constitutional law is subject to signature by the President of the Russian Federation and cannot be rejected by him;

c) federal laws are laws adopted by the Federal Assembly of the Russian Federation and signed by the President of the Russian Federation. This group also includes laws adopted in a referendum - popular vote. The peculiarity of laws adopted in a referendum is that they can only be changed as a result of another referendum. Federal and federal constitutional laws have supremacy throughout Russia and, according to general rule, supreme legal force in relation to all other legal acts;

d) decrees of the President of the Russian Federation. They are issued by the head of state in pursuance of the powers provided for by the Constitution of the Russian Federation (Chapter 4 Section 1). Unlike laws, decrees of the President of the Russian Federation can be both normative and non-normative, i.e., not containing norms of law. The latter include decrees on awarding citizens with orders and medals, on granting citizenship, on the appointment and removal of senior officials. Decrees issued by the head of state within the limits of his powers and not contradicting the Constitution are binding on the entire territory of the Russian Federation;

e) decrees of the Government of the Russian Federation are issued in pursuance of the Constitution of the Russian Federation, federal laws and decrees of the President of the Russian Federation. They are mandatory throughout the country, but if they contradict the Constitution, federal laws and presidential decrees, they can be canceled by the President of the Russian Federation (Article 115 of the Constitution of the Russian Federation);

f) by-laws of federal government bodies (orders, instructions and letters from ministries and departments, state committees and federal services, Central Bank of the Russian Federation, chamber resolutions Federal Assembly RF). All acts of federal executive authorities affecting the rights and legitimate interests of citizens or of an interdepartmental nature are subject to state registration in the Ministry of Justice of the Russian Federation and must be published for public review in accordance with the procedure established by law. Any regulatory legal acts affecting the rights, freedoms and duties of a person and a citizen cannot be applied if they are not published (Part 3 of Article 15 of the Constitution of the Russian Federation).

2. Regulatory acts of the constituent entities of the Russian Federation:

a) constitutions of republics and charters of regions, territories, autonomous okrugs, cities federal significance and autonomous region;

b) laws of the constituent entities of the Russian Federation;

c) by-laws and legal acts of state authorities of the constituent entities of the Russian Federation (decrees, decrees, orders, instructions of governors, presidents of republics, mayors of federal cities, etc.).

3. Regulatory legal acts of local government bodies(decisions of representative bodies of local self-government and heads of administration (mayors) of cities, towns, districts).

4. Regulatory agreements.

Sources of law on the territory of Russia are recognized as interstate treaties ratified(approved) by the Russian Federation. According to Part 4 of Art. 15 of the Constitution, generally recognized principles and norms of international law and international treaties of the Russian Federation are integral part its legal system.

A special type of regulatory agreements are agreements between constituent entities of the Russian Federation and federal government bodies on the delimitation of jurisdiction and powers.

Regulatory agreements also include collective agreements employment contracts between trade unions and employers.

5. Legal customs.

The Civil Code recognized in general form the possibility of applying business customs that do not contradict the law or contract to regulate relations between business entities.

Sources of law are documentary ways of expressing and consolidating norms of law emanating from the state or officially recognized by it, giving them legal, generally binding meaning.

The sources of law, therefore, represent the only “place of residence” of legal norms, the reservoir in which legal norms are found and from where we “draw them” (hence the name “sources”).

Sources of law are characterized by the accuracy of concepts (law, decree, etc.). Sources of law, like positive law in general, have an official, public character; they are recognized by the state, which predetermines the state’s support for the norms they contain and their state security.

Sources of law are practically given an official, public character in two ways:

Through lawmaking, when regulations are accepted (published) by competent government bodies, i.e. come directly from the state;

By sanctioning, when government bodies, such as courts, in one form or another approve social norms (customs, corporate norms), giving them legal force.

There are three main types of sources of law, corresponding to three forms of positive law (conventionally called: “law of the legislator”, “customary law”, “law of the court”).

1. Regulatory legal acts - official documents containing legal norms (as well as provisions that cancel or amend existing norms). These in Russia include laws, regulatory decrees, resolutions, and other regulatory documents of the President, Government, and departments.

2. Sanctioned customs are rules that have become a habit, to which the state has attached generally binding significance and the observance of which it guarantees by its coercive force. The sanction of the state, which gives customs a legal, generally binding meaning, is given either by reference to customs in a normative act, or by actual state recognition in court decisions and other acts government agencies.

3. Judicial or administrative precedent - a judicial or administrative decision on a specific legal matter, which is given a generally binding legal meaning.

Among other sources of law, it is necessary to highlight a normative agreement - an agreement of two or more entities containing generally binding, legal norms (for example, a federal agreement). According to its main legal features A normative agreement refers to normative legal acts.

The sources of law, even more than the legal norms and legal relations themselves, are connected with the practical activities of lawyers and concern everyone who, one way or another, has to come into contact with legal issues in practice. And here it is necessary to keep in mind the essential point that laws and all other sources of law are not only general concepts and ideas, but also a kind of legal realities - documents, texts, precise formulations of legal norms. Therefore, in this area, techniques and rules for handling documents, legal techniques, and knowledge of a purely practical nature are so important.

Now let’s take a closer look at the sources of law.

Types of sources (forms) of law

Custom as a source of law

Legal custom is understood as a rule of behavior that has developed as a result of its actual application over a long period of time and is recognized by the state as a generally binding law.

Custom was the main source of law in the early stages of the development of slaveholding and feudal system. There were known, for example, such people who passed from tribal system customs such as talion (inflicting the same harm on the perpetrator as was done to him), vira (fine for killing a person). A number of legal sources of that time were mainly systematic records of the most important legal customs. An example is Russkaya Pravda.

The approach to the concepts of “custom” and “customary law” in various scientific schools is ambiguous. In domestic pre-revolutionary and modern Western jurisprudence, these concepts were not distinguished at all. The system of customary traditional law is understood as the existing form of regulation of social relations (for example, in the countries of equatorial, southern Africa and Madagascar), based on state recognition of established naturally and social norms (customs) that have become habitual among the population.

Custom is the most ancient source of law, known to all legal systems, but if in the countries of Romano-Germanic and Anglo-Saxon law it plays only a secondary role, then in Africa it was and continues to be an important regulator of social relations, especially outside cities.

Some scholars view common law as the original way of creating legal rules, which arose before society was constituted politically. In their opinion, the law established by custom was applied mainly at fairly early stages of the development of society, in archaic legal systems. However, this is not entirely true, since, as ethnographic science claims, customs are still used by some peoples today, and in addition, the process of creating new customs that reflect the ethnocultural development of society continues.

The peculiarity of a custom is that it is a rule of behavior that has become a habit. From a legal point of view, custom is an unwritten source of law, characterized by disorder, plurality and diversity. The reason for this is the large number of cultures inhabiting a particular region.

An appeal to the world experience of comparative law shows that the majority of scientists, a prominent representative of which is Rene David, believe that custom is not the basic and primary element of law, as the sociological school wants. It is only one of the elements that allows us to find a fair solution. And in modern society this element is not of paramount importance in relation to legislation. But its role, at the same time, is by no means as insignificant as legal positivism believes.

L.G. Svechnikova writes that “a huge influence in the formation of the national legal system belongs to national, religious and other characteristics inherent in a specific ethnic entity (or their combination), as well as those habits, traditions and customs that, repeated and consolidated in the minds of individuals, become norms behavior." Further, she writes that with further evolution legal institutions of society, customs do not lose their significance, but continue to operate both at the everyday level and playing a significant role in the formation of a new legal system.

State-sanctioned custom is a very rare form of law.

In Art. 5 of the Civil Code establishes a new concept - “business customs”, which recognize established and widely used rules of conduct in any area of ​​business activity that are not provided for by law, regardless of whether they are recorded in any document or not.

Currently, the scope of application of business customs is mainly limited foreign trade transactions, but it seems that the further development of market relations will require more detailed regulation of the customs that have developed in this area. The legislator is already following this path, establishing in Art. 427 of the Civil Code, the rule according to which the approximate terms of a standard (exemplary) contract can be recognized as an authorized custom.

As noted by the participants of the scientific and practical conference “Usually law and its role in the formation of modern legal culture” (Rostov-on-Don - Maykop, April 19 - 21, 1999), the problems of customary law and legal pluralism today add new aspects to the extremely interesting and the dramatic situation that is developing in Russia and in many other regions of the former Soviet Union.

The norms of local “unofficial” systems of customary and Islamic law, seemingly in a state of inaction for many decades, contrary to what is written in the textbook, turn out to be effective, and this phenomenon cannot be ignored in modern law-making.

Judicial precedent

In legal encyclopedic dictionary precedent is defined as behavior in a particular situation that is considered as a pattern under similar circumstances. Judicial precedent is a decision in a specific case that is binding on courts of the same or lower instance when deciding similar cases or serves as a non-binding example of the interpretation of the law. The essence of judicial precedent is to give a normative character to a court decision in a specific case.

Not the entire decision or sentence is binding on the courts, but only the “core” of the case, the essence of the judge’s legal position on the basis of which the decision is made. This is what experts in the Anglo-Saxon legal system call the “ratio decidendi”. As R. David rightly noted, English lawyers consider their law mainly as the law of judicial practice (cause low). Legal norms can gradually emerge from precedent. In countries where judicial precedent is recognized as binding, it is a source of law.

Judicial precedent is one of the sources of law in England, the USA, Canada, Australia, that is, where the common law system is adopted. All of these countries publish court reports from which information on precedents can be obtained.

It should be emphasized, however, that in different countries Even within the same legal family, judicial precedent is applied differently.

The rule of precedent in England, for example, is bound by the following provisions:

1) decisions made by the House of Lords are binding on all courts;

2) decisions made by the Court of Appeal are binding both for all lower courts and for this court itself (except for criminal law);

3) the decisions made by the High Court are binding on the lower courts and, although not strictly binding, are very important and are usually used to guide the various divisions of the High Court and the Crown Court. In the USA, the rule of precedent does not operate so harshly due to the peculiarities federal structure countries. First, the US Supreme Court and state supreme courts are not required to follow their own decisions and can thus change their practice. Second, the states are independent, and a rule of precedent applies only to the jurisdiction of the judicial system of a particular state.

The authority of precedent is not lost over time. The actual strength of precedent even increases over the years, and courts are reluctant to overturn long-standing precedents unless they are clearly wrong. A precedent can be rejected either by law or by a higher court. In the latter case, it is considered that the previous decision being canceled was made as a result of an incorrect understanding of the law, and the legal norm contained in it would have never existed.

Recognition of precedent as a source of law enables the court to perform law-making functions, both in the absence of a corresponding law and in its presence; this postulate is characteristic of the entire common law system.

Legal doctrine

The opinions of leading legal scholars in most legal systems do not constitute law in the proper sense of the word. However, in the formation of a model of legal regulation, the importance of scientific works in the field of law has always been quite high. The legislator often took into account the trends that were recorded in the doctrine. In the Romano-Germanic legal family, the basic principles of law were developed precisely within the university walls. The role of doctrine in modern conditions is extremely important in improving legislation, in creating legal concepts and in the methodology of interpreting laws.

At the same time, the history of the development of law knows cases when legal doctrine is perceived as a direct source of law. Thus, in English-speaking countries, judges often justify their decisions with references to the works of English scientists. Muslim law is generally based on the principle of authority, and therefore the conclusions of ancient jurists, experts on Islam, have official legal significance. Extensive sets of rules of generally binding conduct, drawn from the works of eminent jurists, are known to Hindu law.

Religious texts

These are holy books different religions, the provisions of which have universally binding significance in the corresponding systems of religious law (Christian canon law, Hindu law, Judaic law, Muslim law). First of all, we should mention the Koran and Sunna (the Koran is a holy book, which is a collection of teachings, speeches and commandments of Allah; the Sunna is a collection of the biography of the Prophet Muhammad), which are the two main sources of Muslim law.

It must be borne in mind that the relevant religious law (Muslim, Hindu, etc.) is the law of the corresponding religious community (the law regulating the behavior of members of the community of believers), and not the national-state system of law.

Regulatory legal agreement

This is a legal act based on the mutual expression of the will of the parties, which creates a legal norm. It acts as the main legal form in international law.

An agreement is an effective legal tool for determining the rights and obligations, rules of relations between citizens and legal entities. Great importance it has in relations between states. However, the contract is no less important as one of the main sources of law in the field of commercial relations and property turnover.

From a legal point of view, a contract is usually an agreement between two or more persons to establish, change or terminate civil rights and obligations. In the conditions of the emergence of a market economy in the Russian Federation, the role of the agreement as an instrument of self-regulation is significantly increasing. Freedom and equality of the parties presuppose free entry into contractual relations without any administrative dictate. The content of the contract is therefore mutually established legal rights and obligations.

The agreement is concluded on the following principles:

1) equality;

2) autonomy (independence) of the parties and their free expression of will;

3) property liability for violation of an obligation.

The peculiarity of a contract as a subordinate source of law is that the parties can enter into an agreement either provided for or not provided for by law or other legal acts. The main requirement for the form, content and subject of the agreement is that it does not contradict current legislation. One may get the impression that there is no legal regulation of the institution or contract in Russian legislation. However, it is not. One of the most important legal documents of our state, the Civil Code, devoted three chapters to the agreement.

The terms of the contract must comply with the norms contained in the legislation. Otherwise, it may be declared invalid. At the same time, the legislator established the legal priority of the agreement over the law adopted after the conclusion of the agreement (clause 2 of Article 422 of the Civil Code of the Russian Federation).

Source: Digital catalogue industry department in the direction of "Jurisprudence"
(libraries of the Faculty of Law) Scientific Library named after. M. Gorky St. Petersburg State University

Acts of judicial normative control as a source of administrative law:

Dissertation for the degree of candidate of legal sciences. Specialty 12.00.04 - Administrative law; Financial right; Information law /
A. L. Burkov; Scientific hands D. N. Bakhrakh; State educational institution Tyumen State University. Institute of State and Law.

Burkov, A. L.
Tyumen State University.
Institute of State and Law.
2005

Full text of the document:

§ 3 Concept, essence, place of acts of judicial normative control in the system of sources of administrative law

An analysis of legal literature and current legislation allows us to conclude that there are three types of influence of acts of justice, or more precisely, judicial practice on the regulatory framework:

· precedent;

· clarifications on issues of judicial practice - decisions of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation;

· court decisions declaring normative acts illegal (judicial normative control).

On the attribution of explanations on issues of judicial practice to sources of Russian law, there are different opinions. However, discussion of this problem is beyond the scope of of this work, since these acts are not acts of justice. It seems that explanations on issues of judicial practice in the form of decisions do not relate to the specific activities of the court in the administration of justice, but only generalize the results of the administration of justice - generalize judicial practice. According to R.Z. Livshits, “... the explanations of the Plenum are the most directive and least judicial acts in all judicial practice... Explanations outwardly look like a typical act of a legislative or administrative body, in them you can, if desired, find, as in a legal norm, a hypothesis, disposition and sanction...” . Such a phenomenon as the decisions of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation was rightly given the name - “clarification on

issues of judicial practice" (Article 19 of the Federal Constitutional Law "On the Judicial System of the Russian Federation" dated December 31, 1996 No. 1-FKZ, Article 13 of the Federal Constitutional Law "On Arbitration Courts in the Russian Federation" dated April 28, 1995 No. 1-FKZ) . It is advisable to discuss and analyze the legal nature of the Resolutions of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation regarding the recognition or non-recognition of their power as a source of law only outside the framework of the specific activities of the court in the administration of justice, recognizing their nature as an administrative act.

Another question is whether it is possible to attribute decisions of higher courts on specific cases to the sources of Russian law, calling them precedents? In domestic legal literature, the concept of “precedent” is often given a different meaning than it was laid down in the doctrine of precedent in English legal proceedings - a precedent is identified with a court decision, which is unreasonable. Calling a court decision precedent, we rather use this concept in a common sense as a decision that has not previously been encountered in court practice. Moreover, the current Russian legislation does not regulate precedent, therefore, not a single decision of a Russian court, no matter how “precedent” (extraordinary) it is, can be considered binding for legal entities other than the participants in the case. Consequently, court decisions on specific cases are not sources of Russian law.

But in the Russian legal system there is one type of judicial acts that can be confidently attributed to the sources of law, both from the position of legal theory and from the position of law. These are acts of justice declaring normative acts illegal.

As noted above, all courts, both constitutional, arbitration, and general jurisdiction, with the exception of justices of the peace, have the authority to supervise the legality of regulations. The court gives a legal assessment to the normative act, which is that the contested normative act is illegal and violates the rights of an indefinite number of persons. The question arises about the legal nature of decisions adopted by the court containing an assessment of the legality of normative acts, since such acts of justice affect not only the legal status of the parties to the case considered. Are acts of justice the sources of administrative law in particular and law in general? It seems that the answer to the question posed lies in the scope of the concept “source of law”.

The concept of “source of law” is classic along with the concepts of “subject and method of legal regulation” and “branch of law”. However, “there are almost no major works specifically devoted to the sources of law. In our Soviet years An interesting monograph by S.L. was published. Zivs. This was the author's doctoral dissertation. She still remains in Russian jurisprudence in proud loneliness" . The appearance of a textbook by Mikhail Nikolaevich Marchenko “Sources of Law” and a monograph by Oleg Emelyanovich Kutafin “Sources of Constitutional Law of the Russian Federation” should be considered a pleasant innovation. However, the last author is not 64

recognizes the judicial acts of the Constitutional Court of the Russian Federation as the source of Russian law. Regarding the issue of sources of administrative law, it is noted that this institute practically not developed and “except for the article by G.I. Petrov, published back in 1958, we actually do not have theoretical works on this topic (see: Petrov G.I. Sources of Soviet administrative law. - Jurisprudence, 1958, No. 4, pp. 34-45)."

The discussion existing in the legal literature for a long time was conducted on the question in what sense it is necessary to use the term “source of law”. As A.F. concluded Shabanov, “when considering and using the concept of “source of law”, the authors in some cases talk about the force that creates the law, and call it the source of law in material sense; in other cases, they mean the form due to which a legal norm acquires a generally binding character, and call it a source of law in the formal sense.”

As for the concept of a source of law in the formal sense, discussions were mainly conducted on the question of whether to use the term “source of law” or “form of law” in this case.

Behind this dispute, the definition of the concept of “source of law” was not given enough attention and, as a result, between the concepts of “source of law” and “normative act”

sign of identity, they were given a single definition, which, moreover, did not reflect the entire range of law-making activities and, accordingly, did not provide a clear distinction between normative acts and non-normative ones.

In science, the predominance of the definition of a normative act as an act containing rules of law has been noted. The sources of administrative law were understood as acts of public authorities that contain rules of law governing public relations in the field of management. In order to demarcate the source of law, which, apparently, was intended to explain the absence in socialist law of such a source of law as judicial practice, S.L. Zivs noted that “the source of law is the form of expression of precisely the legal norm, and only the norm.” In this regard, they were offered a more precise version of the term “source of law” - “source of legal norms”, which emphasized the external form of expression of the legal norm.

Aleksey Valentinovich Mitskevich drew attention to this gap in science - the lack of development of the concept of “source of law” - back in 1964-1967, noting that this definition cannot correctly reveal the nature of some acts that do not contain legal norms as such.

In his monograph “Acts of Supreme Bodies Soviet state» A.V. Mickiewicz showed in detail that “the definition of a normative act as an act containing norms of law, or as a “form of expression of legal norms” does not answer the main question: whether a legal act of a state body serves as a source (in the legal sense) of the norms contained in it or not. This can only be an act that expresses the will of the competent authority of the state to establish a rule of conduct, to change it or to cancel it.” When defining the concept of “source of law,” they were asked to proceed from

the functionality of the category, its purpose, goals - not so much the consolidation of legal norms, but the expression of the will of the legislator, accordingly, to use the concept of a normative act as an act aimed at establishing legal norms, changing them and repealing them.

Indeed, the very concept of “law” presupposes the normative nature of this document, regardless of whether it contains a rule of law or not. No one will deny the normativity, universality, and therefore the power of the source of law behind the Federal Law “On the implementation of the Code of the Russian Federation on Administrative Offenses,” despite the fact that Art. 1 and 2 of this law do not establish legal norms (rules of conduct) as such, but only put the law into effect and recognize normative acts as no longer in force. Moreover, it is the official policy of the state to refer to regulations and those acts that do not contain rules of law. Thus, the Ministry of Justice of the Russian Federation publishes the “Bulletin of Normative Acts”, which contains, among other things, acts (orders) on the repeal and invalidation of normative acts. For example, in the Bulletin of Normative Acts No. 12, 2002, Order of the Ministry of Health of the Russian Federation dated April 25, 2003 No. 187 “On declaring the normative act of the Ministry of Health of Russia as invalid” was published. The order of the Russian Ministry of Health is considered “lost in force... in order to bring the regulatory legal acts of the Russian Ministry of Health into conformity with the current legislation of the Russian Federation...”. Almost every issue of the Bulletin of Regulatory Acts contains such regulations. Why do we consider administrative acts declaring an act invalid to be a source of law, but acts of justice recognizing a particular normative act as invalid are not!? Decisions of Russian courts to invalidate normative acts are made precisely for the purpose of

bringing a normative act into compliance with the law and in connection with its non-compliance with the law.

Another example speaks of the classification by the Presidium of the Supreme Court of the Russian Federation of acts of justice recognizing normative acts as illegal as sources of law. Canceling the ruling of the Judicial Collegium of the Supreme Court of the Russian Federation dated October 5, 2001, the Presidium of the Supreme Court of the Russian Federation recognized that the repeal could significantly affect the interests of citizens who were registered for the provision of residential premises on the basis of the Regulations on the procedure for improving the living conditions of citizens in the city of Moscow with changes made by the said definition. At the same time, the Presidium of the Supreme Court of the Russian Federation, applying to

act of justice, the constitutional principle that laws that worsen the conditions of citizens, retroactive effect do not have (Articles 54, 55, 57 of the Constitution of the Russian Federation), decided that decisions of housing authorities on registering citizens, taken during the period of validity of the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation (from October 5, 2001 to 18 September 2002), are not subject to review by the courts.

Thus, the definition of a normative act as an act aimed at establishing legal norms, amending them and repealing them is currently becoming even more relevant in connection with the emergence of powers in the courts to exercise normative control. Namely. Judicial acts containing an assessment of the legality of normative acts have legal consequences not only in relation to the parties to the legal dispute, but also to an indefinite circle of persons who are subject to the action of the contested normative act, since they entail the loss of legal force of the normative act; accordingly, they are not exclusively acts of application of law. At the same time 68

time, guided by the definition of a source of law as a document containing norms of law, it is impossible to conclude that acts of justice containing an assessment of a normative act as illegal, entailing the loss of legal force by this act, are sources of law, since the judicial act does not directly contain contains norms of law (rules of conduct). The judicial act in its reasoning part contains only a legal assessment of the legality of the normative act, and in the operative part a conclusion about the illegality (not constitutionality) of the normative act.

The disadvantage of defining the source of law as an act establishing the rules of law was as follows. The concept of “source of law” was determined based on the features of the legal norm, respectively, through the concept of a legal norm. The definition of the source of law, which is “the result of the law-making activity of state bodies,” should reflect the nature of this activity, and its final product, which is expressed not only in the consolidation of rules of conduct. “The correct definition of the concept “normative-

“legal act” cannot be distracted from the purpose of this act, its legal function and be limited only to indicating the need to find a statement of the rules of law in the text of this act.” A normative act as a result of law-making should reflect the features not of a rule of law, but of the features of law-making activity, which is understood as “the purposeful activity of government bodies or the people themselves to establish, change or abolish generally binding rules of behavior (rules of law) in society through a certain formal

R.F. Vasiliev, pointing out that such definitions do not say anything about changing norms, their abolition, changing the scope of action, “while all this is done precisely through legal acts,” gives his definition of a normative act as “an expression of the will of an authorized subject of law regulating social relations by establishing (amending, canceling, changing the scope of) legal norms."

The Resolution of the Plenum of the Supreme Court of the Russian Federation gives the following definition: “A normative legal act is understood as an act issued in the prescribed manner by an authorized state body

authorities, a local government body or an official establishing legal norms (rules of conduct) (my italics - A.B.), mandatory for an indefinite number of persons, designed for repeated application and valid regardless of whether specific legal relations established by the act have arisen or ceased ". It seems that the definition of concepts is not the competence of the court in general and the Plenum of the Supreme Court of the Russian Federation in particular. The Constitution of the Russian Federation (Article 126) and the Federal Law “On the Judicial System of the RSFSR” (Article 58) include among the powers of the Plenum of the Supreme Court of the Russian Federation, in addition to carrying out administrative functions (approving the composition of judicial panels...), giving clarifications on issues of judicial practice, which, more Moreover, they have now lost the power of “guiding”. Formulation of generally binding concepts ( general provisions) is the prerogative of the legislator; proposing definitions of concepts is the sphere of legal theorists.

The Resolution of the State Duma of the Russian Federation dated November 11, 1996 No. 781-11 “On appeal to the Constitutional Court of the Russian Federation” defines a normative legal act: it is a written official document adopted (published) in a certain form by a law-making body within its competence and aimed at establishment, modification or repeal of legal norms. It seems unreasonable to believe that this Resolution contains a legal definition of a normative legal act. The directly indicated Resolution of the State Duma of the Russian Federation is not of a normative nature, it belongs to the category of judicial procedural documents, and is the basis for consideration of the case in the Constitutional Court of the Russian Federation (Article 36 of the Federal Law “On the Constitutional Court of the Russian Federation”), which 1/5 of the deputies have the right to adopt

State Duma (Article 84). Moreover, in para. 2, paragraph 2 of the said Resolution directly states that “in the current legislation there is no definition of the concept “normative legal act” yet,” which means there is no legal definition of this definition.

Today, in connection with the acquisition of powers by the courts to exercise judicial supervision over the legality of normative acts, the scope of application of the definition of the source of law as an act expressing the will of public authorities, including the abolition of a rule of law, is expanding. Therefore, V.A.’s conclusion must be considered justified. Savitsky and E.Yu. Teryukova that “the decisions of the Constitutional Court fully fall even under the formal definition of a normative legal act,” since “the decision of the Constitutional Court to recognize a legal provision as unconstitutional entails the abolition of this provision, that is, the legal norm.”

Today, there is no clear answer to the question about the scope of the powers of the judiciary in terms of the implementation of judicial normative control: does the court only have the right to cancel a normative act or annul it. To show the general picture of the practice of declaring norms of administrative law illegal, by analyzing the wording of the operative part of decisions, we can conclude that in 63 percent of cases the court recognizes a normative act as illegal from the moment it was adopted. The legislator does not currently have a clear position. So, from the contents of Part 5 of Art. 195 of the Arbitration Procedure Code of the Russian Federation it follows that the arbitration court has the right only to cancel an illegal normative act - to recognize it as not subject to application from the moment the court decision enters into legal force. In Part 2 of Art. 253 of the Code of Civil Procedure of the Russian Federation, the legislator takes a different position, providing the court with an alternative - the court recognizes the normative legal act as invalid from the date of its adoption

(cancels) or other date specified in the court decision. Despite the direct indication in Part 2 of Art. 253 of the Code of Civil Procedure of the Russian Federation on the need to annul an illegal normative act, the Supreme Court of the Russian Federation only cancels it. Thus, on May 15, 2003, by a ruling of the Supreme Court of the Russian Federation, paragraph 14.3 of the Instructions on the procedure for issuing, replacing, recording and storing passports of citizens of the Russian Federation, approved by order of the Ministry of Internal Affairs of Russia dated September 15, 1997 No. 605, was declared invalid and not subject to application from the date of this decision. (as amended by orders of the Ministry of Internal Affairs of Russia dated July 26, 1999 No. 554, dated April 4, 2002 No. 320, dated September 27, 2002 No. 937), to the extent that it excludes the right of citizens whose religious beliefs do not allow them to appear in front of strangers without headdresses, to obtain a passport of a citizen of the Russian Federation, submit personal photographs showing the face strictly from the front in a headdress.

It seems that it is useful to distinguish between the repeal of a normative act and its annulment. The need for the existence of the latter is dictated by the duty of the state, represented by the judiciary, to restore violated rights. Only the annulment of an illegal normative act entails the full restoration of the violated rights of citizens, the possibility of filing a claim against the state for compensation for material damage (Article 53 of the Constitution of the Russian Federation), bringing the civil servant who signed the illegal normative act to disciplinary liability (Article 7 of the Federal Law “On appeal to the court”) actions and decisions that violate the rights and freedoms of citizens").

Science also faces the question of the “restorative” function of acts of justice. As already mentioned above, on October 18, 2002, the Presidium of the Supreme Court of the Russian Federation restored the effect in in full Regulations on the procedure for improving the living conditions of citizens in the city of Moscow, which were partially not in effect from October 5, 2001 to September 18, 2002 due to amendments by the Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation. December 10, 2002

already the Constitutional Court of the Russian Federation by determination No. 283-O “At the request of the Government of the Russian Federation to verify the constitutionality of the Decree of the Government of the Russian Federation of January 14, 2002 No. 8 “On introducing amendments and additions to the Regulations on fees for patenting inventions, utility models, industrial designs, registration of trademarks , service marks, appellations of origin of goods, granting the right to use appellations of origin of goods”, restored the effect of Decree of the Government of the Russian Federation of January 14, 2002 No. 8, previously declared illegal and not valid in terms of establishing new amounts of patent duties by the decision of the Supreme Court of the Russian Federation dated May 17, 2002 N GKPI 2002-376. The “restorative law-making” nature of acts of judicial normative control remains to be studied.

The foregoing leads to the conclusion that it is necessary to supplement the concept of “source of law” in order to reflect the peculiarity of the law-making function of annulment of a normative act. We can propose the following definition of an act of justice as a source of law. An act of justice as a source of law is a resolution (decision) adopted during the implementation of legal proceedings in the manner of normative control, recognizing it as inconsistent with the law and changing, repealing or annuling the norms of law. Using this scheme, a definition of acts of justice as sources of specific branches of law, including administrative, can be constructed, depending on the norms of which branch of law are recognized by the court as not corresponding to the law. Since the rules of law governing administrative-legal relations may be contained in regulations any level and any organ 74

state or municipal authorities, the source of administrative law can be both acts of justice declaring illegal a normative act of the executive body, and a normative act of a representative body of government.

When characterizing acts of justice as sources of administrative law, several significant features can be identified. First of all, this is an act of the judiciary. The court issues a large number of acts of various nature, including organizational (for example, an order of the chairman of the court on the procedure for issuing court decisions by the office). (1) Only a court act adopted during legal proceedings in the manner of normative control can be a source of administrative law. (2) In this case, the subject of the judicial dispute is important - a normative act, the legality of which is verified in the form of abstract normative control. (3) Recognition of a normative act as illegal by applying a normative act of greater legal force characterizes acts of justice as acts of “law-making law enforcement,” which is their dual nature and main characteristic. (4) An essential feature of acts of justice as sources of administrative law is that the act of justice is aimed at recognizing the norms of administrative law as illegal, their repeal or annulment.

At present, it seems possible to classify the sources of administrative law according to the nature of law-making activity:

· law-making (regulatory legal acts of representative authorities);

· law enforcement and law-making (regulatory legal acts of delegated legislation of executive authorities, acts of judicial normative control).

Acts of justice declaring a normative act illegal form a new independent type of sources of law, which determines their specific place in the system of sources of administrative law.

B.N. Topornin notes the increase in the diversity of sources, the inclusion of more and more new types in the list of sources of law. The emergence of more and more new sources in the system of sources of administrative law, including regulatory agreements, acts of judicial normative control, requires determining the place of a new source of law in order to prevent a “war of sources”. Ratio judicial law and statutory law is hot topic scientific developments not only in Russia, but also in common law countries, where it is not required to prove the normativity of court decisions. The basic principle that must be followed when determining the place of acts of justice in the legal system in general and in administrative law in particular was formulated by B.N. Topornin at an international seminar on the problem of judicial practice as a source of law: “Undoubtedly, if you overdo it and give judicial precedent properties and qualities that are not appropriate for it, or consider any judicial decision as a source of law, then this will inevitably give rise to chaos and anarchy in legal regulation, will weaken his organization. In this regard, a consistent system of measures is needed to allow judicial precedent to organically enter the system of sources without violating the hierarchy that has developed in it. As a rule, judicial precedent is destined for the role of an additional source of law, the task of which is not to replace pre-existing sources of law, but to clarify, develop, and adapt to new social conditions.”

Considering the problem of the place of acts of justice in the system of sources of law, many authors do not recognize their priority over the law, noting that “in a rule-of-law state, priority is always given to the law.” But with the same degree of confidence, within the framework of the rule of law, the opposite can be stated - priority is given to the court decision. In case of recognition federal law unconstitutional in the order of constitutional proceedings, of course, priority is given to the decision of the Constitutional Court of the Russian Federation. R.Z. Livshits points out the unique place of acts of judicial bodies in the system of sources. “The subordinate nature of judicial acts in relation to the Constitution is undeniable. As a general rule, judicial acts are also of a subordinate nature. However, this relationship is not absolute, since some courts have the power to review and overturn laws. We can say that the courts play a dual role in relation to the law: on the one hand, the courts obey the law and apply it, on the other hand, the courts check the validity of the law and have the right to repeal it.” This expresses the dual (law enforcement and law-making) nature of acts of justice declaring normative acts illegal, which determines their place in the system of sources of administrative law.

Under such circumstances, how is the secondary nature of acts of justice manifested? When adopting, for example, a new law, the ruling of the Constitutional Court cannot be overcome.

S.L. Zivs, noting the strict hierarchy of the system of sources of law, writes that the place of each element of the system of sources of law “is derived from the legal force of the normative act, which in turn depends on the place of the rule-making body in the system of supreme and central bodies of the state.”

The place of acts of justice declaring a normative act illegal in the system of sources of administrative law is also determined by the place of the rule-making body in the system of state bodies. The only difference is that the place is determined not directly by the position of the rule-making body, but through the legal force of the normative act of the rule-making body recognized as illegal, the place of this normative act in the system of sources of administrative law. An act of justice takes the place of a repealed normative act or part thereof. It is the dependence on the normative act that is recognized as illegal that determines the nature of acts of justice as an “additional source of law.” The “complementary” role of judicial practice in relation to the law, which determines the dependence of its place on the law, its quality and peculiar forms, notes Professor S.S. Alekseev. This characterizes the specificity and ambiguity of the place of acts of justice in the system of sources of administrative law. Acts of justice do not have specific and permanent place in the system, because a specific court ruling (decision) declaring a normative act illegal becomes a part of the repealed normative act (in case of its partial repeal) containing norms of administrative law or completely replaces it.

Due to the fact that acts of justice declaring a normative act illegal do not occupy a permanent place in the system of sources of administrative law and are located under a specific challenged normative act, we can confidently state that the place of acts of justice is determined by the place of the rule-making body in the system of supreme and central bodies of the state , the normative act of which was the subject of consideration in court. This position of acts of justice in the system of sources

administrative law does not violate the hierarchy of sources, does not “declares war on sources,” but logically fits into the already established system of acts of representative and executive authorities.

In connection with the above, the opinion of the Scandinavian scientist M. Koktvedgaard seems justified: “It cannot be argued that any source of law has absolute supremacy over others, although the law is characterized by a tendency for its predominance.” The legal validity of equality under certain circumstances of a law or other normative act and court ruling does not lead to chaos, does not distort the hierarchy of the system of sources of administrative law, but on the contrary leads to the strict legality of normative acts, to the exclusion of illegal normative acts that violate human rights from the system of sources of administrative law rights, which gives the system even greater order. Ultimately, the principle that determines the hierarchy of sources of administrative law becomes the priority of human rights, on the basis of which the system of sources of law is built.

It should be noted that acts of justice as sources of administrative law are not limited to acts of Russian justice. Thus, on October 28, 2003, the European Court of Human Rights, in its decision on the complaint of Rakevich against Russia, found that paragraph 4 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was violated, guaranteeing the detainee the right to directly independently appeal to the court with the question of the legality of the detention to a psychiatric hospital. This violation lies in the fact that the Federal Law of the Russian Federation “On psychiatric care and guarantees of the rights of citizens during its provision” does not grant the applicant the right to directly

challenge the detention (according to Part 2 of Article 33 of the Law, “an application for involuntary hospitalization of a person in a psychiatric hospital is submitted to the court by a representative of the psychiatric institution in which the person is located”). The Russian Federation will be forced to bring the Law into compliance with the requirements of Art. 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in order to implement the decision of the court Rakevich v. Russia, which will entail a change in administrative proceedings, a codified act on which has not yet been adopted. Do detainees still have the right today to independently go to court with the question of the illegality of hospitalization, based on the decision of Rakevich against Russia? The nature of the influence of acts of “European” justice on Russian national law remains to be studied.

In connection with the conclusion about the need to recognize the power of the source of administrative law behind acts of judicial normative control, I would like to answer a number of basic questions raised by scientists, as well as give reasons why courts should be given the authority to exercise normative control.

Can a court create a legal norm, “does a court have the right to create law, should it create a new law, i.e. simultaneously legislate and apply the law”? The main arguments against judicial law-making are that judicial law-making violates the principle of separation of powers and that, within the framework of the Roman-Germanic

In the (continental) legal system to which Russian law belongs, the court does not have a law-making function.

The answer to the first question can be negative. The court, declaring a normative act of administrative law illegal, does not create a new legal norm, but annuls the old one, acting as a “negative legislator,” which requires supplementing the definition of the concept “source of law.” It must be emphasized that the power of courts to create law has a constitutional and legal basis (Articles 2, 18 and 46 of the Constitution of the Russian Federation). This power, based on the principle of separation of powers, creates that balance between the political and legal forces of adopting a normative act, which is called the mechanism of checks and balances. The adoption of a law may be the result of a compromise of the political interests of various factions, in which the issue of compliance of the adopted law with the Constitution of the Russian Federation may move to the background. Therefore, the activities of the legislative (representative) body, carried out in accordance with a strict regulatory procedure, do not guarantee respect for the rights of citizens. And such a guarantee against illegal regulations should be judicial regulatory control.

The right of the court to create law (to exercise judicial normative control), the presence of the power of the source of law in judicial acts does not depend on which of the legal

The families of Anglo-Saxon or Romano-Germanic law include the Russian legal system, and in “human rights”. Thus, in our country and in the USSR, “human rights” were enshrined in constitutions, but were not recognized in practice. There was a belief that the individual in a socialist society “is not something valuable in itself. She is a cog in a huge machine. That's why

ensuring her rights comes in the background.” The situation has remained virtually unchanged today. In Russia there is still no culture of human rights, there is no respect for the court, and therefore the power of the sources of law behind acts of justice is not recognized. Of course, the Constitution of the Russian Federation stipulates that “the rights and freedoms of man and citizen... determine (my italics – A.B.) the meaning, content and application of laws, the activities of legislative and executive power, local self-government and are ensured by justice” (Article 18) . But the decisive significance of human rights remained on paper. The defining meaning of “human rights” should be expressed in the fact that the state is obliged to restore violated rights and recognize the appropriate procedures for restoring violated rights. It does not matter how the rights were violated and what needs to be done to restore them. If “human rights” are violated by a normative act, then the holder of such rights has the right to go to court and demand the annulment of the normative act. If restoration of the right requires an issuance court decision on the annulment of a normative act and the recognition of acts of justice restoring a violated right as the source of administrative law - the state is obliged to do this. Arguments about the incompatibility of judicial law-making with the theory of separation of powers, as well as the non-recognition of such law-making powers by the Romano-Germanic legal system, represent only a distorted and literal understanding of the essence of the separation of powers and legal systems. The system of separation of powers is nothing without its main component - the system of checks and balances - which is expressed in the fact that the court is given, in the interests of protecting human rights, the power to restrain the legislative and executive powers, including when they issue regulations.

The essence of the Romano-Germanic legal system of law has never been reduced to the absence of judicial law-making. It was exclusively about priority, the primary role of the law. According to the concept of the continental legal family, expressed by R. David and C. Joffre-Spinosi, “the primary role should be recognized for the law,” “the law forms, as it were, the skeleton of the legal order.” M.N. Marchenko in his works on comparative law gives a classification of the sources of the continental legal system, dividing them into primary and secondary. He writes: “The fact that law in the broad sense of the word is considered in the Romano-Germanic legal family as the primary, broad-based source of law, in reality does not mean at all that it is exclusive, much less absolute or comprehensive in its significance and extent prevalence source". Moreover, M.N. Marchenko is not inclined to consider the opinion that the Russian legal system belongs to the Romano-Germanic legal family as indisputable. In the USSR, judicial law-making was denied, which is echoed in modern arguments against judicial protection of human rights through the annulment of normative acts.

The normative nature of a court decision declaring a normative act illegal does not conflict with the law enforcement essence of the court’s activities. In the case when a rule of law becomes the object of judicial discretion, the court becomes not only a law enforcer, but also a law maker. The reason lies in the previously indicated dualism of the nature of the act of justice in the case of declaring a normative act illegal. The court decision acquires a dual character, combining the features of both a law enforcement act and a normative one. Court

really “administers justice, i.e. judges and decides according to law, applies it." But under certain conditions, the court is forced to create law if this is required by the purpose of the court’s activities - the protection of the rights and freedoms of man and citizen. In this case, there is only one way of protection - invalidation of an act of a state body or local government body (Articles 12, 13 of the Civil Code of the Russian Federation). But at the same time, the court not only creates the law, declaring a normative legal act invalid, but first of all applies the law - a normative legal act of greater legal force. In such cases, judicial law-making acts as a “by-product” of law enforcement and is not independent in nature. Thus, the court can create law, but only without separation from law enforcement. Judicial law-making (judicial rule control) can be characterized as “law-making law enforcement”.

The dual nature of acts of justice declaring normative acts illegal entails the limitations of judicial law-making. Firstly, the court has the right to exercise judicial supervision over the legality of regulations only if a corresponding application is received. For example, the Constitutional Court of the Russian Federation, by virtue of Articles 74, 96-100, 101 and 102 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, based on complaints from citizens and requests from courts, checks the constitutionality of the law or its individual provisions only in the part in which they are applied or are subject, in the opinion of the court, to application in the specific case before it, and makes a decision only on the subject specified in the complaint, request. Secondly, the limitations of judicial law-making lie in the power to act exclusively as a “negative legislator” and to annul legal norms that violate human rights. The court has no right in its decision

establish a new rule of behavior, create new normal otherwise than “crossing out” the illegal one.

Thus, we can say that “the court legislates by applying the law.” Only to a limited extent does the court become a legislator and only by implementing law enforcement. The nature of the court’s activities in this case is of the nature of “law-making law enforcement”. Otherwise, the court will go beyond the scope of law enforcement activities. Three branches of government - three ways of creating law - three natures of law-making. If we talk about the law-making activity of the executive branch, then it can be characterized as “law-making law enforcement”. Thus, the legislator obliges the government to establish a procedure for issuing licenses or passing exams to drive a vehicle. The government has the right to create law only within the framework of the granted powers; within the framework of the execution of the granted right, the government has no right to establish rules other than the rules for issuing licenses and passing exams. Exceeding the powers granted leads to the illegality of a government regulatory act, because law-making activity loses its law-executive character and becomes directly law-making, i.e. is being introduced into the sphere of activity of the representative government body. In the future, from the analysis of judicial practice, we will see the nature of the legal consequences of regulations adopted in excess of authority.

So, the state’s duty to protect human rights entails vesting law-making powers in the courts. Any branch of law serves human rights. Nevertheless,

it is necessary to highlight administrative law due to the fact that it is administrative law that serves to protect human rights from violations by public administration bodies, which caused the emergence of the branch of administrative law - to place public administration within the framework of law. As noted by Yu.N. Starilov,

no systematic administrative law science was created during the period of absolutism, since there was no subject of administrative law, because management activities were carried out without any normative regulation

Types of sources of law

2.2 Judicial and administrative precedent as a source of law

Judicial practice is the activity of courts in applying legislation when considering court cases (civil, criminal, labor, family, etc.). And in this practical activity of the judiciary, rules of law are also developed that can act along with the law contained in regulations and can complement it. Thus, judicial practice is a source of law. When talking about judicial practice as a source of law, the term “precedent” is used.

A judicial precedent is a decision on a specific case that is binding on courts of the same or lower instance when deciding similar cases, or serves as an exemplary example of the interpretation of the law (interpretation precedent).

Judicial precedent as a source of law is characterized by casuistry, plurality, inconsistency, and flexibility.

Casuistry. A precedent is always as specific as possible, as close as possible to the actual situation, since it is developed on the basis of solving specific, isolated cases and incidents.

Plurality. There are quite a large number of authorities that can create precedents. This circumstance, together with the significant duration of the latter (tens and sometimes hundreds of years), determines the enormous volume of case law.

Contradiction and flexibility. It was previously noted that even among regulations issued by one government body, there are sometimes inconsistencies and contradictions. Moreover, it is not surprising that decisions of different courts on similar cases can differ very significantly from each other. This determines the flexibility of judicial precedent as a source of law. In many cases, it is possible to choose one option for resolving a case, one precedent out of several. The written law of such wide open space does not provide a choice. However, in contrast to flexibility, sometimes the shortcomings of case law are its rigidity, the binding of judges by decisions of similar cases, the inability to deviate from them even to the detriment of fairness and expediency.

Judicial precedent is an ancient source of law, and its importance varies at different periods of human history in different countries. It was widely used in the states of the Ancient World, in the Middle Ages. So, in Ancient Rome decisions of praetors and other magistrates were recognized as binding when considering similar cases. In general, many institutions of Roman law were formed on the basis of judicial precedents. Currently, in countries with the Anglo-Saxon legal system (Great Britain, USA, Canada, Australia, etc.), judicial precedent is one of the main sources of law. In the countries of the continental (or Romano-Germanic) system of law at the turn of the 18th-19th centuries, the main source of law was proclaimed a normative act (law). However, from the end of the 19th century to the present day, the importance of judicial practice as an auxiliary source of law has not diminished, and recently it has played an increasingly important role in law enforcement. IN individual countries This provision of judicial practice is enshrined in legislation.

Everything that concerns judicial practice as a source of law, with certain reservations, can also be attributed to administrative practice. Administrative practice is the activity of numerous (with the exception of judicial) government bodies to solve the problems facing them. They also talk about administrative precedent - i.e. about such behavior of a state body, any official, which occurred at least once and can serve as a model under similar circumstances. Like judicial precedent, administrative precedent in the Russian Federation is not an officially recognized source of law. However, in the legal reality of our country one can find examples when, in the practical activities of state bodies, rules of behavior are created that actually operate along with written law, specify, supplement, and sometimes cancel the latter. Lazarev V.V., Lipen S.V. Theory of Government and Rights. Textbook.. - Moscow. Spark, 1998, p. 185-186

Sources of constitutional law of foreign states

Currently, the concept of “judicial precedent” is revealed in many works of both foreign and Russian legal scholars. So...

Sources of law

A judicial (administrative) precedent is a decision of the judicial authorities on a specific case, which is taken as a standard (sample) when resolving other similar cases. Judicial precedent has the following features: 1...

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Sources of financial law

Financial law of Russia. (Textbook) Krokhina Yu.A. (2008, 3rd ed., 187 p.) In recent years, legal precedent has increasingly been recognized as a source of Russian law. Judicial precedent is a rule of conduct...

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Forms (sources) of law

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Forms (sources) of law

This is a more common source than legal custom. It was widely used in the states of the ancient world, in the Middle Ages. So...

Forms (sources) of law

Along with a normative legal act, judicial precedent is a fairly common source of law in modern states. While a normative legal act serves as the main source of law in the Romano-Germanic legal family...

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1. Introductory provisions. The adoption of the CAS is an important stage in the formation of the judiciary in Russia. In accordance with Part 2 of Art. 118 of the Constitution of the Russian Federation, judicial power is exercised through constitutional, civil, administrative and criminal proceedings. Therefore, the separation among the forms of exercising the powers of the judiciary led to its separate legal regulation - in the Civil Procedure Code, the APC, and now in the CAS, while maintaining special legal regulation in the APC.

Among the signs of administrative proceedings are the following:

1. this is a type of judicial activity and a form of exercise of judicial power;
2. regulated by judicial administrative procedural legislation;
3. to protect the rights of citizens and organizations in the field of administrative and other public legal relations.

Thus, administrative proceedings are a type of judicial activity regulated by judicial administrative procedural legislation, aimed at the exercise of judicial power in the field of administrative and other public legal relations in order to protect the rights of citizens and organizations and the implementation of other tasks of administrative proceedings.

When characterizing administrative proceedings, attention should be paid to the peculiarities of the judicial organization in Russia. As a general rule, in countries of the continental (civil) law system, the division of law into private and public is fundamental and decisive, including in the organization of the judicial system. In Russia, courts of general jurisdiction and arbitration courts are simultaneously courts of both private and public law. Although in Art. 118 of the Constitution of the Russian Federation talks about the separation of civil and administrative proceedings; this is not projected directly onto the judicial organization, since a separate system of administrative courts has not been formed in Russia.

Therefore, administrative proceedings are carried out in the Russian Federation by various courts: firstly, the Supreme Court of the Russian Federation in accordance with the Law on the Supreme Court of the Russian Federation and the CAS, secondly, by courts of general jurisdiction in accordance with the CAS and, thirdly, arbitration courts in accordance with the APC.

2. Objectives of administrative proceedings. According to Art. 3 CAS identifies the following tasks of administrative proceedings:

1. ensuring accessibility of justice in the field of administrative and other public legal relations;
2. protection of violated or contested rights, freedoms and legitimate interests of citizens, rights and legitimate interests of organizations in the field of administrative and other public legal relations;
3. correct and timely consideration and resolution of administrative cases;
4. strengthening the rule of law and preventing violations in the field of administrative and other public legal relations.

3. Characteristics of individual tasks of administrative proceedings. The given tasks of administrative proceedings have a programmatic purpose and have a great influence on legal regulation and the process of law enforcement. They are determined on the basis of the Constitution of the Russian Federation, federal constitutional laws and international treaties of the Russian Federation, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms.

The main significance of the tasks is as follows. Firstly, with the help of the tasks of administrative proceedings, it is possible to identify the actual meaning and content of a particular norm of the CAS, and, secondly, the tasks of judicial proceedings set the right guidelines for resolving law enforcement issues when there is no norm of a technical nature, but nevertheless a specific question, brought before the court, requires permission.

Judicial activity is subject to certain established rules that do not depend on the type of legal proceedings and reflect its essence as a form of exercise of judicial power. Therefore, since the judicial administrative process, like the civil process, mediates judicial activity, the concept and system of stages of the judicial administrative process coincide with similar stages of civil and arbitration processes.

The following features are characteristic of the judicial administrative process: firstly, one of the subjects of the judicial administrative process is the court: a court of general jurisdiction, the Supreme Court of the Russian Federation or an arbitration court; secondly, the subjects of the judicial administrative process perform procedural actions, which are the main legal facts that determine its dynamics; thirdly, the subject of the judicial administrative process is cases from administrative and other public legal relations, i.e. administrative proceedings.

Thus, the judicial administrative process is a system of procedural actions of the court, persons participating in the case, and other participants trial regulated by the norms of judicial administrative procedural law that arise when resolving cases of administrative proceedings.

2. Stages of judicial administrative process. The judicial administrative process is a certain system of stages aimed at achieving ultimate goal administrative proceedings - resolution of cases from public legal relations and protection of violated rights, freedoms and legitimate interests. Each stage of the process is a set of procedural actions (relations) united by the immediate procedural goal. At each stage of the judicial administrative process, certain tasks of administrative proceedings are solved depending on the nature of the stage, the powers of the court and other criteria.

The judicial administrative process has the following six stages:

1. proceedings in the court of cassation (in two cassation instances);
2. proceedings to review judicial acts that have entered into legal force due to new or newly discovered circumstances;

Proceedings in the court of first instance are the main and mandatory stage of the judicial administrative process, since it is aimed at resolving the case on the merits. At this stage, the administrative plaintiff files a claim against the administrative defendant, the case is initiated, prepared and considered on the merits with the issuance of a court decision or its completion without a court decision. For educational purposes, in connection with the importance of initiating a case, its preparation for trial and the trial itself, the doctrine distinguishes three separate stages instead of proceedings in the court of first instance: initiation of the case in the court of first instance, preparation of the case for trial and trial of the case on the merits in court of first instance.

Proceedings in the court of appeal are carried out on the basis of appeals and private complaints filed in relation to judicial acts of the courts of first instance that have not entered into legal force. The consideration of the case in the appellate instance, with certain exceptions, is carried out according to the rules of the court of first instance. Therefore, a number of restrictions apply here, for example, new evidence can be accepted only if it could not be presented to the court of first instance for a good reason. In addition, new claims that were not the subject of consideration in the court of first instance are not accepted and are not considered by the court of appeal.

Proceedings in a cassation court are a review of judicial acts that have entered into legal force, with the exception of judicial decisions of the Supreme Court of the Russian Federation. Cassation appeals can be filed with the cassation court by persons participating in the case and other persons if their rights, freedoms and legitimate interests are violated by judicial acts. When accepting a cassation appeal in courts of general jurisdiction, the principle of admissibility applies, according to which only those complaints will be accepted for consideration, from which significant violations of the rules of substantive and procedural law will be obvious, which influenced the outcome of the administrative case and without the elimination of which it is impossible to restore and protect the violated rights, freedoms and legitimate interests, as well as protection of public interests protected by law (Article 328 CAS).

In the judicial administrative process, as in civil and arbitration, two cassation instances have been established - the presidiums of regional and corresponding courts and the Judicial Collegium for Administrative Cases of the Armed Forces of the Russian Federation.

Consideration of cases in the cassation procedure is more procedurally simplified than in the court of first or appellate instance.

Proceedings in a court of supervisory authority are aimed at reviewing, in the manner of judicial supervision, decisions, rulings, and decrees that have entered into legal force. It should be borne in mind that the only judicial supervisory authority in the field of both administrative and civil and criminal proceedings is the Presidium of the Armed Forces of the Russian Federation. In addition, sufficient complex order initiation of supervisory proceedings, and the proceedings themselves in the supervisory order are also simplified.

Proceedings to revise judicial acts that have entered into legal force due to new or newly discovered circumstances are a special form of review of judicial acts that have entered into legal force, associated with the establishment of facts that were not and could not have been previously known to the participants in the process and the court.

Enforcement proceedings are intended to ensure the enforcement of judicial acts in administrative proceedings. The sphere of compulsory execution is separated from the judicial power and organizationally assigned to the executive power. However, the court in the field of compulsory enforcement retains a number of significant powers that ensure preliminary or subsequent judicial control over the acts and actions of the bailiff, as well as the resolution of disputes arising in this area. Therefore, insofar as it ensures the implementation of judicial powers, enforcement proceedings remain a stage of the judicial administrative process.

Each stage of the judicial administrative process is divided into three large independent stages:

1. initiation of a case;
2. preparing the case for trial;
3. trial on the merits with the issuance of an appropriate judicial act.

The initiation of a case, preparation for consideration and the trial itself take place not only in the court of first instance, but also in the courts of appeal, cassation, supervisory instances, and the court considering the case based on newly discovered circumstances. However, the content of the activities to initiate a case, its preparation and trial is different and has specificity in each stage of the judicial administrative process.

The mandatory stage of the judicial administrative process is proceedings in the court of first instance. The remaining stages of the judicial administrative process are optional, since the court decision may not be appealed by any of the persons participating in the case, the debtor has the right to voluntarily fulfill the obligation assigned to him by the court decision, or the claimant has the right to refuse to initiate enforcement proceedings.

3. Structure of administrative proceedings is quite complex and generally complies with the rules of civil procedure. Along with the general rules that are typical for all types of proceedings (Sections I - III CAS), the CAS has a separate section. IV, which contains the specifics of proceedings in certain categories of administrative proceedings. This combination of the general and the specific made it possible to present the CAS material more rationally and avoid duplication of individual norms and institutions.

Therefore, it should be assumed that administrative proceedings in courts of general jurisdiction are not completely homogeneous and uniform, but are divided, depending on the nature of the case, into a number of separate judicial proceedings. For example, judicial proceedings to declare a normative legal act invalid differ significantly in a number of procedural actions that constitute it from the consideration of an administrative claim for involuntary hospitalization of a citizen in a medical anti-tuberculosis organization or from the consideration of an administrative claim for the collection of mandatory payments and sanctions.

At the same time, the key provisions of certain legal proceedings in section. IV CAS are uniform due to the similarity of the stages of the judicial administrative process, the appeal procedure, the determination of the subject composition, the rules of evidence, etc., with certain exceptions that are determined by the specifics of a particular case of administrative proceedings.

In addition, the CAS takes into account the latest trends in the development of the judicial process, aimed at simplifying and speeding up the consideration of certain categories of cases. For this purpose, section was introduced into the CAS. V "Simplified (written) proceedings in administrative cases." Sections VI and VII of the CAS are devoted to revisions of judicial acts, both those that have not entered into force (VI) and those that have entered into force (VII). Section VIII of the CAS is devoted to issues of execution of judicial acts in administrative cases within the competence of courts of general jurisdiction, and section. IX reveals the final provisions of the CAS.

Concept, subject, method and system of judicial administrative procedural law. Relationship with other branches of law

1. The concept of judicial administrative procedural law. Judicial administrative procedural law occupies a special place in the system of procedural law. It is included in the system of procedural branches of law along with civil procedural and arbitration procedural, criminal procedural and constitutional procedural law. The purpose of judicial administrative procedural law is that through the judicial administrative process the forced implementation of substantive law occurs and is carried out in legal form resolution of conflicts in the field of administrative and other public legal relations.

It is important to note that judicial administrative procedural law is a subfield of civil procedural law. The fact is that “civil procedural law, as a fundamental (core) branch of law, contributes to the formation and establishment of secondary legal entities...”. As already noted, the judicial administrative process is a “cast” of the classical civil process due to the coincidence of key principles, stages and rules. In this regard, judicial administrative procedural law is a secondary legal formation in the normative fabric of civil procedural law, incorporating key elements of the fundamental branch of law. Forming as a complex branch of the “legal family” of civil procedural law, judicial administrative procedural law absorbs its main features, having some of its own specific characteristics in the subject of this branch, its principles, rules of evidence, subject composition and some other characteristics. The very origin of judicial administrative procedural law occurred, as is known, by separating from the Civil Procedure Code a number of chapters devoted to cases from public legal relations into the CAS. a common part The CAS is also built on the basis of the general provisions of the Civil Procedure Code and the Arbitration Procedure Code, which is obvious from their comparative analysis.

Thus, judicial administrative procedural law is a system of legal norms regulating the activities of the court and other interested parties that arise in the implementation of administrative proceedings. In other words, judicial administrative procedural law regulates the procedure for carrying out administrative proceedings, which serves as the main element of the subject of this branch of law.

2. Subject, method and system of judicial administrative procedural law. The subject of judicial administrative procedural law is the procedural actions of the court and interested parties in the administration of justice in administrative cases, i.e. judicial administrative process or administrative proceedings.

The method of judicial administrative procedural law combines elements of a mandatory (authoritative instructions) nature with a dispositive (permissive) principle. The simultaneous combination of imperative and dispositive principles in the method of legal regulation is explained by the nature of procedural law. Judicial administrative process, like civil and arbitration processes, on the one hand, is the authoritative activity of the court in applying the norms of substantive and procedural law, which presupposes an authoritative principle in the mechanism of procedural regulation; on the other hand, the judicial procedural form is aimed at creating equal conditions to protect the rights and defend the interests of participants in administrative proceedings. This difference is key when distinguishing between the concepts of judicial administrative process and administrative procedure, since in administrative procedures their participants do not have equal rights, these relations are built according to the general rule on the basis of subordination.

The imperative principles of the method of judicial administrative procedural law are manifested mainly in the following:

• procedural norms determine the position of the court as a judicial authority;
• the main procedural legal facts are the procedural actions of the court;
• judicial administrative procedural law provides the court with the right to control individual actions of the parties;
• The judicial administrative process is based on a strictly defined procedural order for the administration of justice - the procedural form.

The dispositive principles of the method of judicial administrative procedural law are manifested mainly in the following:

• equality of the parties to administrative proceedings in the legal opportunities that are provided to them to protect their rights and interests;
• freedom to use these rights, since, as a general rule, subjects of administrative procedural law have the right to exercise or not exercise their rights;
• an equal system of guarantees of the rights of subjects of judicial administrative proceedings, since judicial administrative procedural law protects the interests of the administrative plaintiff in the sense of procedural guarantees in the same way as the interests of the administrative defendant.

The system of judicial administrative procedural law is as follows: this procedural branch consists of two parts - general and special.

The general part of judicial administrative procedural law is a system of norms and legal institutions aimed at regulating the most common features procedural relations, all stages of the judicial administrative process.

The general part includes the following institutes:

• general provisions, including norms-objectives and norms-principles;
• jurisdiction and jurisdiction;
• administrative procedural legal capacity and administrative procedural legal capacity, administrative procedural legal personality, defining the circle of subjects of judicial administrative procedural law;
• evidence and proof;
• preliminary protection measures;
• court notices and summonses;
• measures of procedural coercion.

A special part of judicial administrative procedural law contains rules united in special institutions that regulate certain types of procedural relations. In this case, several groups of special institutions are distinguished. Firstly, these are institutions that characterize and unite into a single whole the individual stages of the judicial administrative process:

• proceedings in the court of first instance;
• proceedings in the appellate court;
• proceedings in cassation courts;
• proceedings in a supervisory court;
• review of judicial acts based on new or newly discovered circumstances;

Secondly, these are special institutions that contain rules on the peculiarities of judicial proceedings in certain categories of administrative proceedings, concentrated in section. IV and V CAS.

3. The relationship between judicial administrative procedural law and other branches of law. Judicial administrative procedural law is interconnected with various industries rights. The connection between judicial administrative procedural and constitutional law is manifested in the fact that the basic principles of the organization and activities of the judiciary are established in the Constitution of the Russian Federation.

Judicial administrative procedural law is part of the “legal family” of civil procedural law and is closely related to this branch, since both branches regulate the administration of justice. Hence a number of general, cross-sectoral principles of procedural branches of law. The main subjects in both civil and judicial administrative proceedings are the courts of various instances. A significant part of the institutions of procedural branches of law is intersectoral in nature, which is obvious from the examples of jurisdiction and jurisdiction, procedural deadlines, court notices, evidence and proof, judicial acts, proceedings for the revision of judicial acts and many others. The criterion for individual differences between them is the subject of judicial activity (civil or administrative proceedings).

Close connections exist between judicial administrative procedural law and arbitration procedural law due to both the significant similarity of their basic principles and institutions within the framework of the “common family” of procedural law, and the fact that arbitration courts carry out administrative proceedings in essentially the same procedural forms as courts of general jurisdiction and the Supreme Court of the Russian Federation.

Judicial administrative procedural law has a close connection with substantive administrative law, since within the framework of administrative proceedings disputes from public legal relations are considered. The rules on administrative legal personality, the use of evidence and some others arise from the peculiarities of administrative law.

Sources of legislation on administrative proceedings

The concept of sources of judicial administrative procedural law. - these are legal acts that contain the norms of a given branch of law. Sources of law are generally divided according to the following criteria:

• laws and regulations;
• regulatory and judicial;
• national and international.

Laws. According to Art. 2 of the CAS, the procedure for carrying out administrative proceedings is determined by the Constitution of the Russian Federation, the Laws on the judicial system, on military courts, on courts of general jurisdiction, as well as the CAS and other federal laws.

The traditional hierarchy of sources is defined here: the Constitution of the Russian Federation, federal constitutional laws, CAS and other federal laws. It is also important to note that the main source of judicial administrative procedural law is the law.

Attention should be paid to the following circumstance when characterizing the CAS as a source of legislation on administrative proceedings. In Part 1 of Art. 1 Code of Civil Procedure and Part 2 Art. 3 of the APC, when building a hierarchy of sources of civil procedural and arbitration procedural legislation, priority among federal laws is given to the Civil Procedure Code and the APC, respectively, since other federal laws regulating the procedure for civil proceedings under the Civil Procedure Code and the procedure for legal proceedings under the APC can only be adopted in accordance with these Codes.

In Art. 2 of the CAS does not contain a rule on such priority in matters of the implementation of administrative proceedings by courts of general jurisdiction and the Supreme Court of the Russian Federation in cases assigned by the CAS to their jurisdiction. Does this mean that the CAS is not the main source of rules of administrative procedure for courts among other federal laws that may also regulate these issues? We believe that in relation to the CAS, priority belongs to its norms if other federal laws do not comply with it and are adopted not in accordance with the CAS. The basis for such a response is Part 3 of Art. 2 CAS, allowing analogy of law. Therefore, in this case, when choosing sources of legislation for considering cases under the CAS, it is possible to apply, by analogy, Part 1 of Art. 1 of the Code of Civil Procedure, which determines the priority of procedural norms of the Civil Procedure Code (in our case, CAS) over procedural norms in other laws.

When characterizing CAS, it is important to note that CAS is generally a “cast” of the Civil Procedure Code and, to a certain extent, the Agro-Industrial Complex. This approach should be assessed positively, since it serves the development of the judiciary in the field of administrative proceedings. Indeed, why come up with something new in the presence of historically established and effective system conflict resolution reflected in the norms of the Civil Procedure Code and the Arbitration Procedure Code? Therefore, it is no coincidence that in the CAS many rules of the Civil Procedure Code and the Arbitration Procedure Code are duplicated, since the legislator simply added the word “administrative” to the established procedural concepts (administrative claim, administrative plaintiff and defendant, etc.). At the same time, it should be noted that there is some “heaviness” and verbosity of the concepts and terminology of CAS. For example, a statement under Art. 42 CAS is called a “collective administrative claim”.

The sources of legislation on administrative proceedings also include the APC, since in accordance with this Code administrative proceedings are carried out by arbitration courts. Although provisions on administrative proceedings are excluded from the Civil Procedure Code, this Code is also a source of judicial administrative procedural law due to genetic relationships with civil procedural law and the need to interpret many provisions of the CAS on the basis of the Civil Procedure Code.

Other federal laws also include federal laws applied when considering certain categories of cases of administrative proceedings, for example: the Tax Code, the Code of Administrative Offenses, the Law on Enforcement Proceedings, laws regulating the procedure for elections, etc.

Among the by-laws as sources of legislation on administrative proceedings, one can note the Decree of the Government of the Russian Federation of December 1, 2012 N 1240 “On the procedure and amount of compensation for procedural costs associated with proceedings in a criminal case, costs in connection with the consideration of a civil case, an administrative case, as well as expenses in connection with the implementation of the requirements of the Constitutional Court of the Russian Federation and the recognition as invalid of certain acts of the Council of Ministers of the RSFSR and the Government of the Russian Federation,” issued in pursuance of the provisions of Part 4 of Art. 109, part 2 art. 110, part 4 art. 114 CAS.

International sources. According to Part 2 of Art. 2 CAS, if an international treaty of the Russian Federation establishes other rules of administrative proceedings than those provided for by the CAS, then the rules of the international treaty apply. In particular, it is possible to apply international treaties and conventions regulating certain issues of legal proceedings. For example, in matters of judicial notices, it is permissible to apply the Convention on the Service Abroad of Judicial and Non-judicial Documents with respect to foreign participants in the process, since “nothing prevents participating States from applying the conventions in their relations with each other in matters relating to the field of public law... ".

It should also be borne in mind that, according to Part 4 of Art. 15 of the Constitution of the Russian Federation, generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system.

The CAS itself directly points to this. For example, according to clause 4, part 4, art. 180 CAS, the reasoning part of the court decision may contain references to rulings and decisions of the ECtHR, decisions of the Constitutional Court of the Russian Federation, decisions of the Plenum of the RF Armed Forces, decisions of the Presidium of the RF Armed Forces, adopted by the RF Armed Forces in order to ensure the unity of judicial practice and the rule of law.

Also, according to Part 1 of Art. 350 of the CAS, the grounds for revising a judicial act based on new circumstances are circumstances that arose after the adoption of the judicial act and are essential for the correct resolution of an administrative case, such as the recognition by the Constitutional Court of the Russian Federation of a law applied by the court in a specific case as inconsistent with the Constitution of the Russian Federation in connection with the adoption of a decision on to whom the applicant applied to the Constitutional Court of the Russian Federation; finding by the ECHR of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms when the court considered a specific case, in connection with the decision on which the applicant applied to the ECHR; determination or change in the resolution of the Plenum of the RF Armed Forces or in the resolution of the Presidium of the RF Armed Forces of the practice of applying the legal norm applied in a particular case, if the relevant act of the RF Armed Forces contains an indication of the possibility of revising judicial acts that have entered into legal force due to this circumstance; recognition by the Supreme Court of the Russian Federation, by a court of general jurisdiction, as not valid from the date of adoption of a normative legal act applied by the court in a specific case, in connection with the adoption of a decision in which the applicant challenged this normative legal act.

In all the examples given, judicial acts are the source of law, since, by virtue of the direct instructions of the law, they must or can be used as the basis for a law enforcement decision.

Action in time and space. Administrative legal proceedings are carried out in accordance with those norms of procedural law that are in force during the consideration and resolution of an administrative case and the commission of a separate procedural action. Therefore, procedural law, unlike substantive law, as a general rule, is not characterized by “experiencing” the law, since legal proceedings are always carried out according to the rules in force at the time of each specific procedural action.

The general rules of administrative proceedings in the courts of first, appellate, cassation and supervisory instances provided for by the CAS apply to all categories of administrative cases, taking into account the specifics of proceedings in certain categories of administrative cases established by the CAS. Therefore, it is necessary to pay attention to the differentiation of procedural norms and rules in relation to each specific category of administrative proceedings.

In the absence of a norm of procedural law regulating relations arising in the course of administrative proceedings, the court applies a norm regulating similar relations (analogy of law), and in the absence of such a norm it acts based on the principles of administration of justice in the Russian Federation (analogy of law). As already noted, the main part of the provisions of the CAS coincides completely or corresponds in its “spirit” with the rules of the Civil Procedure Code and the Arbitration Procedure Code. Therefore, for the application of rules by analogy with the law, the best source will be the Civil Procedure Code, as well as in some cases the Arbitration Procedure Code, which are classical and basic procedural laws. For example, consideration of cases on collective administrative claims in accordance with Art. 42 CAS will require the application by analogy of many provisions of Chapter. 28.2 of the APC, since to regulate such a complex and relatively new institution for Russian procedural legislation as class actions and group proceedings, one article of the CAS is clearly not enough.

Principles of judicial administrative procedural law (principles of administrative proceedings)

At the same time, the method of normatively consolidating the principles of judicial administrative procedural law in norms is twofold. Firstly, norms and principles are identified that are directly formulated in the rules of law in the form of specific instructions, for example, the independence of judges. Secondly, the concept and content of a number of principles are derived from the content of a number of rules of procedural law, for example, the active role of the court.

The key principles of the administration of justice are formulated in Chapter. 1, 2 and especially in ch. 7 “Judicial power and the prosecutor’s office” of the Constitution of the Russian Federation, as well as in a number of international legal documents, for example in the Convention for the Protection of Human Rights and Fundamental Freedoms.

In particular, the following principles are enshrined in the Constitution of the Russian Federation:

• equality before the law and the court (Article 19);
• administration of justice only by the court (Article 118);
• independence of judges and their subordination only to the Constitution of the Russian Federation and federal law (Article 120);
• irremovability of judges (Article 121);
• publicity of the trial (Article 123);
• competitiveness and equality of the parties (Articles 19, 123).

These principles of justice (judicial and judicial) are united and ultimately find the same expression in the norms of procedural codes, despite the variety of specific formulations. From the point of view of the classification of principles, most of them are intersectoral in nature, since they also operate in the field of civil, constitutional and criminal proceedings, especially when considering cases by courts of general jurisdiction and arbitration courts in civil and arbitration proceedings.

According to Art. 6 CAS principles of administrative proceedings are:

• independence of judges;
• equality of all before the law and court;
• legality and fairness in the consideration and resolution of administrative cases;
• carrying out administrative proceedings within a reasonable time and executing judicial acts in administrative cases within a reasonable time;
• publicity and openness of the trial;
• immediacy of the trial;
• competitiveness and equality of parties in administrative proceedings with the active role of the court.

However, this list is not exhaustive, since a number of principles are not reflected in Art. 6 CAS, for example, accessibility of justice in administrative cases. In addition, all judicial principles of justice in administrative cases were not consolidated here.

It should be emphasized the importance of enshrining the principles directly in the text of the CAS, since the principles, firstly, set the basis for the legal regulation of administrative proceedings and, secondly, determine the conditions and guidelines for law enforcement in the absence of a specific rule regulating the performance of a specific procedural action when considering cases of administrative proceedings, They also help to correctly use the analogy of law and law.

The principles are divided according to the scope of action into judicial and judicial principles, according to the source of consolidation - into international and national, and further - into intersectoral, sectoral, and principles of individual institutions. Special meaning have constitutional principles of justice that determine the key characteristics of the organization and exercise of judicial power in the implementation of both administrative and civil, criminal and constitutional proceedings.

Characteristics of certain principles of administrative proceedings.

Independence of judges (Article 7 CAS). According to this principle When carrying out administrative proceedings, judges are independent and are subject only to the Constitution of the Russian Federation and federal law. The principle of independence is constitutional (Article 120 of the Constitution of the Russian Federation) and international (Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms).

According to this principle, judges, when administering justice, must adopt judicial acts without the influence of any other bodies or persons, based only on the Constitution of the Russian Federation, laws and other regulations. At the same time, judges are not free to exercise their functions and issue judicial acts - they are bound by the Constitution of the Russian Federation and federal laws, including the CAS, which determine the forms and limits of the implementation of the powers granted to them. Therefore, procedural legislation, when regulating the powers of the court, mainly uses the method of prescription in order to reduce the opportunities for the exercise of judicial discretion.

Guarantees of the independence of judges are divided into political, economic and legal. Political guarantees include enshrining in the Constitution of the Russian Federation the principle of separation of powers and the independence of the judiciary from the executive and legislative powers. In addition, a judge does not have the right to be a deputy, belong to political parties and movements, carry out entrepreneurial activities, or combine work as a judge with other paid work, except for scientific, teaching, literary and other creative activities.

Economic guarantees of the independence of judges consist in providing the judge, at the expense of the state, with material and social security corresponding to his high status.

Legal guarantees of the independence of judges consist in a special procedure for vesting powers (appointment of judges), defined in the Laws on the Judicial System and the Status of Judges. The independence of a judge is also ensured by a number of other guarantees: provided by law the procedure for administering justice; prohibition, under threat of liability, of anyone’s interference in the administration of justice; the established procedure for the suspension and termination of the powers of a judge; the right of a judge to resign; immunity of a judge; system of bodies of the judicial community; irremovability of judges (since the powers of judges are not limited to any term) and other legal guarantees. Many procedural guarantees of the independence of judges are reflected in subsequent articles of the CAS, in particular in the rules on the challenges of judges (Chapter 3), on the assessment of evidence (Article 81), on the secrecy of meetings of judges (Article 175), etc.

Equality of all before the law and the court (Article 8 CAS). According to the principle of equality of participants in justice in administrative cases before the law and the court, justice is carried out on the basis of equality of organizations and citizens, regardless of any characteristics and criteria. It follows from the principle of equality before the law and the court that justice is carried out on an equal basis, regardless of the legal status of the participants in the process, their property status, form of ownership and other criteria; the procedural position of participants in judicial proceedings in administrative cases is determined only by the CAS; the procedural procedure for resolving administrative cases within the jurisdiction of courts of general jurisdiction is determined by the procedural form.

Providing equal judicial protection to all persons participating in the case is one of the procedural duties of the court, which for these purposes is vested with various powers. For example, when preparing a case for trial (Chapter 13 CAS), the judge performs appropriate procedural actions in relation to both parties, etc. In this regard, equal judicial protection is also ensured by the active role of the court (clause 7 of article 6 of the CAS).

Legality and fairness in the consideration and resolution of administrative cases (Article 9 CAS). This article reflects another aspect of the unified principle of the independence of judges and their subordination only to the law, which includes rules regarding the application of the norms of both substantive and procedural law, the direction and content of the process of legal implementation. This principle has its origins in Part 2 of Art. 15 of the Constitution of the Russian Federation, according to which government bodies (including judicial authorities) are obliged to comply with the Constitution of the Russian Federation and laws. In addition, this article enshrines the principle of fairness when considering and resolving administrative cases by courts.

The responsibilities of judges to ensure the rule of law in the administration of justice in administrative cases are carried out in different ways: firstly, the rule of law is ensured by the correct application of legislation in the absence of pressure and independence of judges in the administration of justice. To eliminate judicial errors in the judicial process, there is a special system of courts and bodies that ensure the review of judicial acts; secondly, legality is ensured by compliance with the rules of legal proceedings, which are expressed in the administrative-judicial procedural form as a normatively established procedure for the administration of justice. The procedural form is characterized by such features as normativity, indisputability, consistency and universality, which act in unity during legal regulation and legal implementation. Their separate characterization is possible only for the purposes of purely theoretical analysis. The main provisions characteristic of the civil procedural form and the arbitration procedural form are to the same extent inherent in the administrative-judicial procedural form, which once again emphasizes its qualities such as universality, the ability to be applicable to resolve a wide variety of categories of cases arising in the field of application both private and public law.

The principle of justice (Article 9 CAS). When considering and resolving administrative cases by courts, this principle is quite extensive and evaluative in content. legal concept. In general, international law enshrines the right to a fair trial, although the question of the scope of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms is controversial. The procedural aspect of fair justice, according to M.A. Filatova, based on the mentioned article, includes the principle of equality of parties in the use of remedies, the adversarial nature of legal proceedings, the motivation of the judicial act, openness (publicity) of legal proceedings, a reasonable period for consideration of the case, the inadmissibility of arbitrary cancellation of court decisions that have entered into legal force, the right to unconditional execution judicial act, i.e. virtually all aspects of the right to a fair trial. Therefore, D.A. is right. Fursov, who wrote that “justice is a much larger, independent general legal phenomenon, not covered by individual principles and institutions of civil procedural and arbitration procedural law.”

In this regard, fairness in the administration of justice in general and in administrative cases in particular is a fundamental concept that permeates the entire system of procedural law in the same way as the principle of access to justice. Unlike access to justice, which is focused more on the conditions for its implementation, justice is aimed at its result. We can agree with A.T. Bonner, who noted that “legal justice” consists in finding and making the most optimal decision, most appropriate to the circumstances of the case, suitable for a given particular case.”

The principle of justice is addressed mainly to the court, since the search for a fair solution in an adversarial process can be realized through judicial activity. Therefore, it is no coincidence that, according to Part 1 of Art. 8 of the Law on the Status of Judges, a judge first elected to office takes a solemn oath with the following content: “I solemnly swear to honestly and conscientiously fulfill my duties, to administer justice, obeying only the law, to be impartial and fair, as my duty as a judge and my conscience tell me ". A number of judicial acts of the Constitutional Court of the Russian Federation draw attention to the need to ensure the fairness of the trial, primarily through the activities of the court.

Another aspect of the principle of fairness in administrative proceedings is the increased protection of the non-powerful party to the dispute, which is reflected in a number of provisions of the CAS.

A reasonable period of administrative proceedings and a reasonable period of execution of judicial acts in administrative cases (Article 10 CAS). The right to a fair trial in civil cases within a reasonable time is one of the fundamental principles of justice enshrined in Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and reflects its real accessibility to all interested persons. At the same time, States Parties to the Convention bear full responsibility for organizing legal systems in such a way that the courts can guarantee everyone the right to obtain, within a reasonable time, a court decision resolving a dispute about civil rights or obligations. Reasonable deadlines for legal proceedings are aimed at avoiding prolongation of a situation of uncertainty, which could lead to a denial of justice. There is quite a large practice of the ECtHR, in which it discloses and specifies provisions on a reasonable period of legal proceedings in relation to civil cases.

The concept of a reasonable period is not given in the legislation, but it can be understood as the period of trial or execution of a judicial act that guarantees real protection of the rights, freedoms or legitimate interests of interested parties. The protection of rights cannot be recognized as real within a time frame when, due to the circumstances of the case or the very nature of the subject of the dispute, the issuance of a decision and its execution beyond a reasonable time makes it ineffective.

In 2010, the Law on Compensation for Violation of the Right to Legal Proceedings within a Reasonable Time was adopted, and Art. 6.1 Code of Civil Procedure and Art. 6.1 APC. These norms regulate the principles of determining reasonable time limits for consideration of a case and execution of a judicial act, as well as the procedure for considering the relevant demands of citizens for the award of monetary compensation in connection with violation of reasonable time limits in civil and arbitration proceedings, as well as in enforcement proceedings for penalties at the expense of budget funds of the budget system Russia. Article 10 of the CAS establishes the rule of a reasonable time in relation to administrative proceedings.

According to Part 3 of Art. 10 CAS, proceedings in courts must be carried out within the time limits specified in the CAS, but in any case they must be reasonable.

When understanding the principle of reasonable time, it is important to pay attention to the following. All actions performed in the judicial process are presented in a procedural form. One of the manifestations of the procedural form is the performance of actions within the time limits established by the CAS, or within the time limits established by the court, which is one of the guarantees of compliance with the principle of accessibility of justice, fairness of justice, as well as a guarantee of the rights and legitimate interests of participants in administrative proceedings. The trial cannot drag on indefinite time, therefore, if a CAS deadline is not established for a certain procedural action, then this deadline must be established by the court itself in accordance with the criteria of reasonableness.

In particular, according to Art. 141 of the CAS, administrative cases are considered and resolved by the Armed Forces of the Russian Federation before the expiration of three months, and by other courts - before the expiration of two months from the date of receipt of the administrative claim in court, including the period for preparing the administrative case for trial, if other deadlines for consideration and resolution of administrative cases are not CAS installed. In complex administrative cases, these deadlines can be extended by the chairman of the court by no more than one month. The calculation of the period for consideration of the case is carried out according to the general rules for calculating procedural terms established by Chapter. 8 CAS.

In Part 2 of Art. 10 CAS formulates the criteria that determine the assessment of deadlines as reasonable. The specified criteria for determining a reasonable period, reflected in the mentioned article and art. 258 CAS are generally consistent with the practice of the ECtHR. As M. de Salvia writes, the criteria that the ECtHR uses to assess the duration, reasonable or not, of the process are: the complexity of the case (relative to its subject matter); conduct of the parties (plaintiffs and defendants); behavior judicial authorities(as well as administrative authorities who intervened in the process); the importance of the subject of the proceedings for the interested party.

A number of issues regarding the application of provisions on a reasonable period of legal proceedings and in the execution of judicial acts are reflected in the Resolution of the Plenum of the Supreme Court of the Russian Federation, the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 23, 2010 N 30/64 “On some issues that arose during the consideration of cases on the award of compensation for violation of the right to legal proceedings within a reasonable time or the right to execute a judicial act within a reasonable time.”

Publicity and openness of judicial proceedings (Article 11 CAS). Unlike the Civil Procedure Code and the APC, the CAS enshrines two principles - publicity and openness, but openness is most likely one of the aspects and characteristics of publicity. In accordance with the principle of transparency, the proceedings of administrative cases are open, ensuring the presence of any person at the hearings. The principle of openness is constitutional (Part 1 of Article 123 of the Constitution of the Russian Federation). Hearing cases in closed court sessions is permitted in cases where disclosure of state secrets is possible, as well as when the court satisfies the petition of a person participating in the case, citing the need to preserve commercial, official and other secrets, and in other cases established by law (Part 2 of Art. 11 CAS).

The transparency of justice, including in administrative cases, ensures its educational and preventive functions. In addition, publicity helps reduce the subjectivity of judges and allows everyone to ensure compliance with the legal procedures for the trial of a case established by the procedural law. Ultimately, publicity ensures, in a broader sense, the transparency of justice in all its aspects.

A closed court hearing must be held in cases where state secrets will be disclosed during open proceedings, and in other cases specified in federal laws. In this situation, the main thing is to use information related to state secrets as evidentiary information. Therefore, a closed court hearing is held at the initiative of both the court and any of the persons participating in the case. In other cases, holding a closed meeting is allowed only at the request of a person participating in the case, and if he provides evidence that a commercial, official or other legally protected (for example, notarial) secret may be disclosed in an open meeting. The request is granted at the discretion of the court.

Information classified as state secret is defined in Art. 5 of the Law of the Russian Federation of July 21, 1993 N 5485-1 “On State Secrets”. The concept of information containing a trade secret is given in the Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets”. The same Law defines the range of information that cannot be classified as a trade secret.

An important element of the modern understanding of the publicity of judicial proceedings is the posting on the Internet of information about judicial acts and other information related to the conduct of the case. In particular, the Law on Ensuring Access to Information on the Activities of Courts established rules for posting judicial acts on the Internet. A number of issues of ensuring openness of legal proceedings in courts of general jurisdiction are explained in Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 13, 2012 No. 35 “On openness and transparency of legal proceedings and on access to information about the activities of courts.”

The language in which administrative proceedings are conducted (Article 12 CAS). The principle of the state language of legal proceedings is that administrative legal proceedings are conducted in the state language - Russian, and persons who do not speak the language in which administrative legal proceedings are conducted are provided with the possibility of translation in order to understand the procedural actions being performed. In accordance with Part 1 of Art. 68 of the Constitution of the Russian Federation, the state language of the Russian Federation throughout its territory is Russian. At the same time, according to Part 2 of Art. 26 of the Constitution of the Russian Federation, everyone has the right to use their native language and to freely choose the language of communication. In development of these constitutional provisions in Part 3 of Art. 10 of the Law on the Judicial System, persons participating in the case who do not speak the language of the proceedings are guaranteed the right to speak and give explanations in native language or in any freely chosen language of communication, as well as use the services of a translator. Therefore, in addition, in administrative proceedings in courts located on the territory of republics within the Russian Federation, legal proceedings can be conducted in the state language of this republic.

The status of a translator is enshrined in Art. 52 CAS, and the terms of payment for his translation work are in Art. 106, 108, 110 of this Code. The profession of a so-called sworn translator is unknown to Russian legislation, therefore the CAS does not provide for special qualification requirements to the translator. It is obvious that persons who have a special diploma or qualification as a translator or who speak the language to a degree sufficient to ensure adequate translation are entitled to act in this capacity.

Directness of the trial (Article 13 CAS). The principle of direct examination of evidence in a trial in an administrative case lies in the obligation of the court to directly examine and accept all evidence in the case, i.e. listen to explanations of persons involved in the case, testimonies of witnesses, expert opinions, read written evidence, documents in electronic form, inspect physical evidence, listen and (or) watch playback of audio and video recordings. This ensures that the judges personally perceive all the evidence.

In some cases, when, for example, the collection of evidence was carried out by sending a letter of request, the immediacy of the perception of evidence is ensured by familiarizing the judges and persons participating in the case with its results recorded in the relevant documents.

According to Part 2 of Art. 50 of the Constitution of the Russian Federation, in the administration of justice, the use of evidence obtained in violation of federal law is not allowed. This rule is addressed to the court, since the decision can only be based on the evidence that was examined at the court hearing. In accordance with Art. 172 CAS, if the court, during or after the judicial debate, finds it necessary to clarify new circumstances relevant to the consideration of the administrative case, or to examine new evidence, it issues a ruling to resume the consideration of the administrative case on the merits. After the consideration of the administrative case on its merits, judicial debates occur in the general manner.

Competitiveness and equality of the parties (Article 14 CAS). This article combines two principles - adversarialism and equality of the parties, which corresponds to Part 3 of Art. 123 of the Constitution of the Russian Federation and the approach of Art. 12 Civil Procedure Code. In the APC, these principles - equality of the parties (Article 8) and competition (Article 9) - are set out separately. According to most experts, the principles of competition and equality of the parties in their relationship have independent significance and can be considered separately. In addition, we can also say that administrative proceedings are characterized by the principle of judicial leadership and, in general, the active role of the court in the administration of justice in civil cases.

The adversarial principle covers all types of legal proceedings and processes. According to this principle, persons interested in the outcome of the case have the right to defend their case in a dispute by presenting evidence, participating in the study of evidence presented by other persons, and expressing their opinion on all issues to be considered in court.

The essence of this principle is that the parties compete before the court, convincing it with the help of various evidence that they are right in the dispute. Therefore, the adversarial principle reflects the current model of the process and determines the motivation for the parties’ behavior in court. In this sense, the adversarial principle is the “soul” of the judicial process. The entire system of legal proceedings and evidentiary activity of the parties depends on the process model - adversarial or investigative.

Adversarial law involves placing the burden of proof on the parties themselves and, as a general rule, removing the obligation to collect evidence from the court. However, in administrative proceedings, in contrast to civil proceedings, the court is distinguished by greater judicial activity and the presence of significant powers to participate in evidentiary activities. In this regard, the CAS complies with the rules that were previously enshrined in the Civil Procedure Code (Articles 246 and 249, no longer in force), as well as the current provisions of the APC (Article 65, Part 5 of Article 66, Article 189).

For example, according to Part 3 of Art. 62 CAS, the court, when determining the subject of proof, is not bound by the grounds and arguments of the stated claims in administrative cases to challenge regulatory legal acts, decisions, actions (inactions), respectively adopted or committed by state authorities, local governments, other bodies and organizations vested with individual state or other public authorities, officials, state or municipal employees, as well as in administrative cases on the protection of electoral rights and the right to participate in a referendum of citizens of the Russian Federation.

In addition, according to Part 2 of Art. 14 and part 1 art. 63 CAS, in order to properly resolve administrative cases, the court has the right to request evidence not only at the request of the persons participating in the case, but also on its own initiative.

The distribution of responsibilities for proof in administrative cases also looks different. According to Part 2 of Art. 62 CAS, the obligation to prove the legality of contested normative legal acts, decisions, actions (inactions) of bodies, organizations and officials vested with state or other public powers rests with the relevant body, organization and official. These bodies, organizations and officials are also required to confirm the facts to which they refer as the basis for their objections.

The principle of procedural equality of the parties is that the legislation on administrative proceedings ensures the equality of persons participating in a case when going to court, with equal opportunities to use procedural means to protect their interests in the court of first instance, as well as within the framework of proceedings to review judicial acts. At the same time, it is important to ensure not only legal, but also actual equality of the parties.

The court, as a body of justice in administrative cases, cannot and should not give advantage to one of the parties in the trial, which is reflected in the very model of the trial, where the legal capacity of one party is opposed by the procedural measures of protection of the other party.

The significance of the principle of equality of parties to administrative proceedings lies in the fact that, as a general rule, in the field of administrative and other public legal relations the subjects are not equal in their position, and their relationships are built on the basis of power and subordination, subordination. However, in the field of administrative proceedings, as participants in procedural relations, subjects of public law lose their powers of power and acquire the status of subjects of procedural legal relations, based on the equality of their participants, except for the court, since only the court is vested with power for the purposes of administering justice.

The principle of judicial leadership is reflected in Part 2 of Art. 14 CAS. It covers a wide variety of functional powers of the court when considering administrative cases and reflects its active role. In particular, the court is endowed with a number of powers that allow it to formulate the subject of proof, request independent evidence, ensure equality of legal opportunities for the parties, etc. This conclusion follows from the wording of paragraph 7 of Art. 6 of the CAS, which emphasizes that the principles of administrative proceedings are “adversarialism and equality of the parties to administrative proceedings with the active role of the court.”