annotation scientific article by law, author of scientific work - Ostapovich Igor Yuryevich
In modern conditions, the judiciary takes an active part in the creation of legal norms, acting as a "negative legislator" (by canceling the action of a unconstitutional act or annuling a subtitle act). The article consistently reveals the features of the functions of the "negative legislators" by the authorities constitutional control In the framework of the Anglo-Saxon, American and European models. Such activities are directly related both to the right to interpret the provisions of the principal law of the state and with the right to make decisions on the compliance of other legal norms. Conductivity is possible in terms of interpretation, the consequences of making decisions within the framework of the subsequent constitutional control, as well as the various roles of the judicial institutions themselves. Constitutional and legal sources of Great Britain, USA, Germany, Austria, Italy, Spain, Japan, Israel, Switzerland are analyzed in detail. Various views of Russian and foreign scientists on this issue were investigated. Of particular interest is the consideration of the peculiarities of the processes of the formation and development of the institute constitutional justice in Islamic states. The author notes that not only Kelzenovskaya is acting as a "negative legislator" ( constitutional courts), but also other traditional organs of organs constitutional control. Functions of the "negative legislator" performed by the body constitutional control, inherent in any of the well-known models of its implementation, they have common features and at the same time defined specifics due to the construction of domestic legal system.
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Judicial Authorities of Constitutional Control AS "Negative Legislator" in Modern Practicein Foreign Countries
In The Modern Context Judicial Authorities Actively Participate in The Creation of Legal Norms Acting As a Negative Legislator (Repealing Operation of An Unconstitutional Bill or Abrogating A BY-LAW). The Article Consistently Reveals Peculiarities of Carrying Out by Judicial Authorities of Constitutional Control Over The "Negative Legislator's" Functions in The Frame of Anglo-Saxon, American and European Model. This Activity IS Directly Linked Both with the right to interprettional law, and the right to make Decisions on Compliance of Legal Norms With That Law. Difference Is Possible in Relation to the Volume of Interpretation, Consequences of Decision-Making AS Part of the Subsequent Constitutional Control and Also Different Roles of Judicial Bodies. The Article Analyzes in Detail Constitutional and Legal Sources of Such Countries As Great Britain, The USA, Germany, Austria, Italy, Spain, Japan, Israel and Switzerland. The ARTICLE ALSO INVESTIGATES VARIOUS POINTS OF VIEW OF RUSSIAN AND FOREIGN SCIENTISTS ON This Topic. Investigation of Peculiarities In The Process of Building-Up and Development of the Constitutional Justice Institute In Islamic States Is of Particular Interest. IS NOTED IN THE STUDY THAT IT IS NOT ONLY KELSEN MODEL (Constitutional Courts) That Act As a "Negative Legislator", But Also Other Traditional Models of Bodies of Constitutional Control. The "Negative Legislator's" Functions Performed by A Body of Constitutional Control Are Inherent to Any Well-Known Model Of Its Implementation, The Same Time Certain Particularities, Conditioned by The Structure of A National Legal Framework.
Text of scientific work on the topic "The judiciary of constitutional control as a" negative legislator "in the modern practice of foreign countries"
Judicial authorities of constitutional control as a "negative legislator" in the modern practice of overseas countries
Ostapovich Igor Yuryevich, Associate Professor of the Department of Theory and History of the State and Law of the Gorno-Altai state University, Candidate of Legal Sciences
649000, Russia, Altai Republic, Gorno-Altaisk, ul. Lenkina, 1.
E-mail: [Email Protected]
In modern conditions, the judiciary takes an active part in the creation of legal norms, acting as a "negative legislator" (by canceling the action of a unconstitutional act or annuling a subtitle act). The article consistently reveals the features of the functions of the "negative legislator" by constitutional control bodies within the Anglo-Saxon, American and European models. Such activities are directly related both to the right to interpret the provisions of the principal law of the state and with the right to make decisions on the compliance of other legal norms. Conductivity is possible in terms of interpretation, the consequences of decision-making within the framework of subsequent constitutional control, as well as the various roles of the judicial institutions themselves. Constitutional and legal sources of Great Britain, USA, Germany, Austria, Italy, Spain, Japan, Israel, Switzerland are analyzed in detail. Various views of Russian and foreign scientists on this issue were investigated. Of particular interest is the consideration of the peculiarities of the processes of the formation and development of the Institute for Constitutional Justice in Islamic States. The author notes that not only Kelsenovskaya (constitutional courts), but also other traditional models of constitutional monitoring authorities speak as a "negative legislator". The functions of the "negative legislator" performed by the constitutional control body are inherent in any of the well-known models of its implementation, they have common features and at the same time determined specifics due to the construction of the domestic legal system.
Keywords: judicial authority, constitutional control, "negative legislator", Constitutional court, Supreme Court, Amparo procedure.
Judicial Authorities of Constitutional Control AS "Negative Legislator" in Modern Practice in Foreign Countries
I. YU. Ostapovich, Associate Professor of the Theory and History of State and Law Chair of Gorno-Altaysk State University, Doctor of Law
1, Lenkin St., Gorno-Altaysk, Republic of Altay, Russia, 649000
E-mail: [Email Protected]
In The Modern Context Judicial Authorities Actively Participate in The Creation of Legal Norms Acting As a Negative Legislator (Repealing Operation of An Unconstitutional Bill or Abrogating A BY-LAW). The article consistently reveals peculiarities of carrying out by judicial authorities of constitutional control over the "negative legislator" s "functions in the frame of Anglo-Saxon, American and European model. This activity is directly linked both with the right to interpret the provisions of The State "S Constitutional Law, And The Right to Make Decisions on Compliance of Legal Norms With That Law. Difference Is Possible in Relation to the Volume of Interpretation, Consequences of Decision-Making AS Part of the Subsequent Constitutional Control and Also Different Roles of Judicial Bodies. The Article Analyzes in Detail Constitutional and Legal Sources of Such Countries As Great Britain, The USA, Germany, Austria, Italy, Spain, Japan, Israel and Switzerland. The ARTICLE ALSO INVESTIGATES VARIOUS POINTS OF VIEW OF RUSSIAN AND FOREIGN SCIENTISTS ON This Topic. Investigation of Peculiarities In The Process of Building-Up and Development of the Constitutional Justice Institute In Islamic States Is of Particular Interest. IS NOTED IN THE STUDY THAT IT IS NOT ONLY KELSEN MODEL (Constitutional Courts) That Act As a "Negative Legislator", But Also Other Traditional Models of Bodies of Constitutional Control. The "Negative Legislator" S "Functions Performed by A Body of Constitutional Control Are Inherent to Any Well-Known Model Of Its Implementation, The Same Certain Particularities, Conditioned by The Structure of A National Legal Framework.
Keywords: Judicial Authority, Constitutional Control, "Negative Legislator", Constitutional Court, Supreme Court, Amparo.
DOI: 10.12737 / 14265
The activities of constitutional control bodies as a "negative legislator" are quite clearly visible on the example of almost any state in which they exist. It is directly related to the right interpretation
fans of the Basic Law and with the right to make decisions on the compliance or inconsistency of other legal entities.
Similar examples can be found in English, and in American, and in European models
posting control. The differences may concern the amount of interpretation and the consequences of decision-making in the mode of subsequent constitutional control, as well as in part of the various roles of the courts: in the European model, this is the interpretation of the law, in English-follows to him as a higher act made exclusively by the Parliament, in American - law-making.
For the English model, the system relationships in the type "Constitutional control authority - negative legislator" are characteristic of the smallest. For example, in the UK, the courts cannot complement the statute, as well as recognize its invalid positions, but they are using the Statute in each specific situation and interpret it in accordance with those rules and presumptions that they themselves have developed. "In English jurisprudence, a sufficiently large number is determined Such presumptions. Among them: 1) Following the literal meaning of the words of the law; 2) following the intention of parliament, as a result of which the law adopted; 3) the law should not be interpreted in such a way as to generate absurdness; 4) denial of retrospective action; 5) a ban of limiting citizens' rights Due to the ambiguity of the law; 6) Cancellation of case law only under the condition of a clear requirement of the law; 7) the prohibition of the interpretation of the provisions of the law in such a way that they are invalid due to the interpretation act; 8) there is no crime without guilt; 9) prohibition of judicial jurisdiction; 10) consistency norms of law and international law; 11) territory flax action law2.
V. F. Kuznetsov binds the gradual implementation of the reform of the British judicial system with the introduction of Great Britain to the European Community, especially with the first precedent of the abolition of the UK domestic legislative act by decision European Court (Factortame case), which at that time, under no circumstances could not make any British court due to the rule of the rule of parliament3. On the example of the case of Factortame, it is possible to conclude the use of the presumptions of coherence of the laws and international law and the ban on the restriction of jurisdiction of courts, which in the aggregate "translated" the idea of \u200b\u200bthe rule of parliament4.
1 See: Garner D. United Kingdom: Central and local government. M., 1982. P. 27.
2 See: Bennionf. Statutory Interpretation. L., 1984. R. 21-59.
3 See: Kuznetsov V. F. Judicial System of England and Russia: Comparative Analysis // Bulletin of the Chelyabinsk University. 2004. No. 1. P. 66-71.
4 in the case of the Factation Court formulated such a rule
lo: National norms procedural law can not
complicate the use of general, i.e. integration, right.
The decision on this case was accepted by the EU Court in the Deputy
the order provided for by Art. 234 Creating Treaties
In addition, in addition to the case law in the UK, there is a sufficiently large number of "delegated legislation", relative to which J. Salmond indicates: these laws arise from the delegation by the Parliament of their authority to subordinate bodies, which in the implementation of delegated powers remain the subjects of control of the sovereign legislator5.
M. A. Matinan, exploring the types of delegated legislation, allocates among them acts of executive, judicial and autonomous legislation. At the same time, he believes that in the first place is the control of the parliament itself due to the fact that the adoption of delegated legislation is associated with the transfer of its powers by the Parliament. Parliamentary control exempt delegated legislation from other forms of control, and above all the judicial. For example, in the case of "City of London V. Wood "The following position was established: the rulings to be considered by Parliament, to no extent limit the powers of the court to consider delegated legislation and solving the issue of their full or partial invalidity. Judicial control is carried out by the courts only then
European Community, on the submission of the House of Lords. The subject of the request was the interpretation of the right community regarding the competence of national courts to provide intermediate means judicial protection In the case when the parties challenge the rights based on integration law. In this case, several companies, including Factortame, appealed against the Great British Court of 1988, which, in their opinion, violated the community right, and demanded to apply intermediate means to ensure the claim before finalizing the final decision. The case was transferred to the House of Lords, which noted that the National Court does not have the authority to accept intermediate funds against the act of parliament, as a result of which the use of temporary measures to ensure the claim is impossible. The EU court found that the priority of the community rights would be broken if the norm national law will be able to prevent the court considering the dispute settled by the right community to provide intermediate means legal protection To ensure complete effectiveness of the decision, which will be made about the existence of the right of the rights provided by the Community. In this regard, the National Court is obliged by considering the case on which the community right is addressed if it believes that the only obstacle that prevents him from providing intermediate means of judicial protection is the norm of national law, not to apply this norm (see: CASE 213/89, The Queen V. SECRETARY OF STATE FOR TRANSPORT, EX PARTE FACTORTAME LTD AND OTHERS // EUROPEAN CORT REPORTS. 1990
5 See: Salmond J. JurisPrudence. L., 1907. 288. Scottish Legal System.
gda, when considering a specific case, referenced to delegated legislation. In this case, the courts may require evidence of its reality. Consideration of the issue of the reality of delegated legislation proceeds in parallel with the consideration of the main issue. At the same time, it should be noted that the basis of the recognition of delegated legislation is invalid by its incompatibility with the law established by the court6.
In this regard, we believe that judicial control does not replace the parliamentary and inferior to him only in part of the time and method of implementation (a certain dispute is necessary for judicial control, the activities of the Parliament are based on other principles). Thus, the court control carried out in the UK is not constitutional control in the sense that Russian legal science and legal system are investing in this concept. However, the general ideas of its implementation lie in the same plane as the ideas of constitutional control, as a result of which in the role of a "negative legislator" he acts as the same as any other system of constitutional control.
In the American Model of Constitutional Control, the activities of the courts as a "negative legislator" are initially due to the constitutional mechanism of "checks and counterweights", which, as W. Bernam indicates, provided executive and legislative power The means of deterring the judiciary through the procedure for the selection and appointment of judges of federal courts and control the volume of jurisdiction of these courts. The US judicial system has two levels: federal courts and courts of states. The system of federal courts includes the US Supreme Court, 12 appeals courts and federal district courts. By virtue of Clauses about the supremacy federal law The courts of states, like federal courts, are endowed with the right to interpret the American Constitution (as well as state constitutions) 7.
In accordance with Art. The II Constitution of the United States judges of federal courts are appointed by the President with the Council and the consent of the Senate. In most states, the position of the judge is elected8. The right of the head of state to appoint judges Supreme Court is one of the forms of constitutional impact on the judicial system, but the absence of legislation
6 For example, in 1929 in the case of "Minister Of Health V. King "was created such a precedent (see: Matinanm. A. Place and role of the law in the system of sources of law of England // Society: politics, economics, right. 2008. No. 2. P. 150-163).
7 See: Bernam at the US Legal System. Vol. 3. M., 2006. P. 478.
8 See: Friedman L. Introduction to American Law. M., 1992. P. 57.
but the established criteria for the selection of judges led to a fair politicization of this process. Starting from 1803, when a decision was made on the case of "Marbury V. Madison ", American courts come from two postulates: the rule of the constitution over other laws and empowering the authorities to argue on the cases under consideration, which is right9. The courts of any level have the right to carry out constitutional control, including through the interpretation of the Constitution (though, in many states it is prohibited "outside the framework of the case under consideration"). Although the judicial supervision (in Russian translation used this term) and decentralized, the lower courts create only the "best assumptions" (Best Gueses) regarding the importance of certain norms of the Constitution, while the position of the US Supreme Court is final and the question constitutional law It becomes permitted after making a decision by the Supreme Court10.
In general, in the United States, any legislature may become an object of constitutional control. administrative Act, challenged in court. Although American lawyers note that the activity of the Supreme Court in the field of control of constitutionality federal legislation Reduced11. However, the existence of the American federation itself will be at risk, if you deprive the Supreme Court of the right to declare unconstitutional laws of individual states12.
S. V. Polenina in connection with this pays attention to three rules, according to which American courts perform the function of constitutional control: 1) Plain Meaning Rule - courts should not change the essence of the law under the guise of its interpretation; 2) The Mischief Rule - the meaning of interpretation is to make sure that the legislator's actual intention and strengthen the effectiveness of its implementation; 3) The Golden Rule - the Court is obliged to apply the law so as to avoid the possibility of absurd re-show13. These provisions focus on the American constitutional control system rather on a "positive" direction, but at the same time actually prohibit changing the content of the law, while maintaining the overall "negative" beginning.
The European Constitutional Control System also generally demonstrates the orientation of
9 See: Bernam W. Legal system USA. M., 2006. P. 59.
10 there. P. 533.
11 See: Brestd. Congress As A Constitutional DecisionMaker // Georgia Law Review. 1986. No. 1. P. 92.
12 See: Holmes O. Collected Legal Papers. Hartcourt, 1920. R. 296.
13 See: Polenina S. V. Faithful precedent in the Russian
Federation-reality and perspective // Representative power. 2002. № 5-6. P. 47-48.
specially created judicial bodies in the direction of recognizing the provisions of laws that are not relevant to constitutions, followed by the loss of these laws legal force. This can be illustrated by the example of the powers of the constitutional control agencies of Germany, Austria, Italy, Spain, France.
Thus, in Germany, the activities of the Federal Constitutional Court (FCC) as a "negative legislator" can be concentrated according to Art. 93 of the Basic Law of the Federal Republic of Germany. Article 90 of the Law on the Federal Constitutional Court of Germany provides for the submission of a constitutional complaint in cases where other means of judicial protection are exhausted. But if the questions affected in the complaint are of universal importance or the applicant will be caused irreparable damage during delay in the procedure for consideration of the complaint in the court of general jurisdiction, it is possible to take it into the production of FCC FRG without compliance with the usual order. When satisfying the complaint in solving FCC, the Federal Republic of Germany indicates which position of the Basic Law of the Federal Republic of Germany was violated by what actions or inaction. When making a decision arising from a specific court case, FCC FRG has the right to return the case to a competent court. When declaring regulatory Act Not appropriate Basic Law FRG Act proclaimed invalid14.
Similarly, in Austria, the terms of reference of the Federal Constitutional Court are almost comprehensive, and its decisions are obligated to immediately actuate the mechanism for the abolition of the challenged law. In some cases, FCS Austria changes in its activities an Austria's administrative court: when the constitutionality of management acts appeals (according to the legislation of Austria, a three-stage appeal to the executive authorities is provided, but if the violation qualifies from the positions established in Art. 144 of the Constitution of Austria, the complaint may not be directed to the administrative court, and in FKS Austria). The right to contact FCS Austria is parliamentary, the Federal Government, the Administrative Bodies, the Government of Land, the Accounts Chamber, the Supreme and Administrative Courts, citizens.
In Italy, in accordance with the Constitution of 1947, the verification of the constitutionality of laws (as a general rule, it is carried out at the requests of the courts of general jurisdiction) is implemented by the Constitutional Court. If the court recognizes the unconstitutional any law, its provisions loss the day the day after
14 See: The Law on the Federal Constitutional Court of Germany (Bundesverfassungsgerichtsgesetz - Bverfgg). URL: http://www.gesetze-im-internet.de/bverfgg/ (Reference date: 06/01/2014).
In Spain, the device and the procedure for the activities of the Constitutional Tribunal (Court) (hereinafter referred to as the COP of Spain) are based on the Austrian, German and Italian models15. In accordance with Art. 161.1 Constitution of Spain in 1978. The Constitutional Court may consider: 1) complaints about the unconstitutionality of laws and other regulatory legal acts that have the power of the law; 2) Complaints about protection from illegal action state bodies violating the basic rights and freedoms of citizens; 3) conflicts arising between Spain as a state and its autonomies or between the autonomies themselves relative to their competencies16. The peculiarity of the Spanish legal tradition is that in accordance with the Constitution, every citizen has the right to defend its rights and freedoms before the court of first instance, in which the case should be considered in an urgent and priority order, and in some cases, by submitting an application in accordance with the AMPARO procedure in the COP of Spain (for example, when refusing to military service for religious reasons). In addition, the Government may appear before the COP of Spain of the situation and resolution adopted by the Autonomous Communities. Protesting entails the suspension of the situation under consideration or resolution, but Spain's COP in a period not exceeding five months must confirm or cancel the effect of these acts.
In France, as a result of the Constitutional reform of 2008, the Constitutional Council received the right of subsequent control. Change procedure
15 See: Casas Baamonde M. E. Spanish experience // Bulletin of the Constitutional Court of the Republic of Belarus. 2010. № 3. P. 127-131. The composition of the constitutional tribunal is formed in the following order: only 12 members appointed by the king; Of these, four are at the suggestion of the Congress, the received majority of his members in 3/5 of his members; Four - at the suggestion of the Senate taken as by the same majority; Two - on the proposal of the government and two - at the suggestion of the General Council of the judiciary. Its activities are governed by the Constitution of Spain and the Organic Law on the Constitutional Tribunal of October 3, 1979 No. 2/1979.
16 Among the latest acts of the COP of Spain, it is possible to mention the decision taken in February 2013 on the unconstitutionality of the Social Security Act, which forbidden to pay pensions in connection with the death of the breadwinner, to persons consisting in a childless one-pole marriage. As the COP of Spain, legally adopting the children with persons consisting in one-pole marriage, until recently it was prohibited, and therefore the norm of the law was recognized by the inequality between homo- and heterosexual pairs.
control required a full consulting principles in its activities, equality of the parties, the impartiality of the process. Organic Law of December 10, 2009 No. 2009-1523 "On the application of Article 61.1 of the Constitution" changed the organizational and procedural aspects of verification of the compliance of the laws taken constitutional provisions. In the Organic Law of November 7, 1958, "On the Constitutional Council" included the chapter "The Priority Question of Constitutionality". Currently trial It may challenge the constitutionality of the law to be applied in a particular case, making a relevant request. The court of general jurisdiction, if recognizes the request received by the relevant procedural form, sends it to the State Council or in Cassation court. These instances, after re-examining the request, appeal to the Constitutional Council of France. The internal regulation of the procedure for consideration by the Constitutional Council of the Priority Question of Constitutionality provides for special rules regarding the preparatory part of the proceedings, hearings and decision making. In general, the production in the Constitutional Council of France is a fairly classified procedure, in many respects inaccessible to public lighting. Decisions are accepted in a closed meeting, only their operative part are announced, they are final and not subject to appeal. In addition, control over the constitutionality of acts of executive power is entrusted to the State Council of France.
Some Latin American States (Mexico, Ecuador, Peru, etc.) borrowed the features of the Spanish legal tradition and indicated that every citizen had the right to defend his rights and freedoms before the court of first instance. The case should be considered in an urgent and priority procedure by submitting an application in accordance with the Amparo procedure. The essence of the AMPARO procedure, as indicated by A. A. Klishas, \u200b\u200bis that she will partly duplicate cassation productionbecause the constitutional control mechanism itself is aimed at protecting the foundations of constitutional law and order, namely: the rights, freedoms and legitimate interests of citizens and legal entities; competences of federal state bodies from encroachments by public institutions of state; The powers of the agencies of the subjects of the Federation from encroachments by the federal authorities, which is carried out through independent proceedings initiated by initiative the victim, and make decisions on constitutionality or unconstitutionality of the contested regulatory act, which entails established
legislation Legal consequences for the parties to the case under consideration17.
The Constitution of the Dominican Republic of January 10, 1947 (lost strength), in contrast to the main laws of other Latin American countries, did not provide for the judicial constitutional control, this function is a fiscal order since the late 1970s. Performed the Supreme Court. The Constitution provides for the following position: in Art. 40 In imperative form, it is fixed that all laws, decrees, regulations and acts contrary to the Constitution, thereby losing all legal force. Article 184 of the Constitution of the Dominican Republic of January 26, 2010 it is indicated that the Constitutional Court was created to guarantee the supremacy of the Constitution, Protection constitutional order and basic rights. Its decisions are finalized and are connecting precedents for public authority and all organs.
In the previous Constitution of Brazil, a constitutional control system was also envisaged, similar to American, and with the adoption of the Brazil Constitution of October 5, 1988, the constitutional control was closer to the Kelsen (Austrian) model and is carried out by the only court18. However, the Federal Supreme Court of Brazil may also revise in an emergency appeal Decisions made by the courts of first instance in the following cases: 1) When the decision contradicts the provisions of the Constitution or the letter of the Agreement or the Federal Law; 2) when the question arises on the compliance of the Federal Law in relation to the provisions of the Constitution, and the decision on which appeal is brought, denies the application of the contested law; 3) when the compliance of the law or the act of local management of the constitution or federal laws is challenged, and the decision on which the appeal is brought, considers the law or act as valid; 4) When the decision on which the appeal is brought, a different interpretation of the federal law is given than what was given to any other court or the Federal Supreme Court of Brazil himself. Trends in the development of legislation in Latin America were common due to features historical Development. They led them to the resemblance to the consideration of the constitutional control system.
Constitutional and control activities may not communicate with the general rules for organizing relevant legal families. For example,
17 See: Klisis A. A. "Procedure of Direct Amparo": Legal Fundamentals of the Organization and Constitutional Jurisdiction // Russian investigator. 2006. No. 5. P. 58-64.
18 See: Bustamante T. Evanilda de Godoi Bustamante
Constitutional Courts AS "Negative Legislators": The Brazilian Case // Revista Jurídica Piélagus. 2010. R. 137-156.
shape on significant differences in the geographical position, state device and the formation of the legal system, general features are traced in operation as a "negative legislator" of the constitutional control bodies of Switzerland, Israel and Japan. In all three countries, constitutional control is carried out by the highest judicial authority, endowed with other powers in the field of judicial authority. The implementation of constitutional control is essentially late with the mechanism of creating precedents, as provided for in English and US law (whatever constitutional control, only as the main direction of justice). So, in Switzerland higher organ Justice in accordance with Art. 188 of the Swiss Constitution of April 18, 1999 is the Federal Supreme Court, which allows: 1) complaints of violation of constitutional rights; 2) complaints about violation of the autonomy of communities and other guarantees of cantons in favor of public legal corporations; 3) complaints of violation state treaties or canton agreements; 4) public legal disputes between the union and cantons or between the cantons. In addition, it is endowed with competence on civil, criminal and administrative affairs19. Historically, the Supreme Court of Switzerland provides constitutional control only in relation to the laws of cantons (when considering cases on complaints to violations of the constitutional rights of citizens); The federal legislation is not an object of control.
In Israel, the process of "negative" constitutional lawmaking has the following features: the Constitution of Israel is based on the basic laws of this country (Declaration of Independence, etc.); The adoption of the Knesset - the Parliament of Israel laws slowly and unevenly; The functions of constitutional judicial control are carried out by the Supreme Court of Israel (hereinafter - the Sun
19 As T. Yaag notes, since 2007, the Supreme Court considered constitutional questions In connection with appeals within the framework of public law, claims to government agencies, appeals to subsidiary constitutional complaints. Until 2006, he dealt with constitutional complaints and appeals to the administrative court, along with constitutional and administrative claims. In general, federal laws (and international public law) cannot be subjected not only to abstract, but also indirect (concrete) judicial control. Thus, the strengthening of the supremacy of the Federal Constitution is not ensured, and the principle of direct democracy dominates the principle of the rule of law (see: Yaag T. Constitutional courts as "positive legislators": the experience of Switzerland // Bulletin of the Constitutional Court of the Republic of Belarus. 2010. № 3. P. 132-143).
rail); " judicial activisism "at the level of Israel is growing. All this is expressed in making decisions that complement and expand the current constitutional standards, with the actual termination since 1995, the process of constitutional lawmaking within the framework of the Knesset20. Israeli sun as a constitutional control authority has important Not only to protect the constitutional acts of Israel, but also the development of the constitutional law of this country.
And in the verdict on the suit "Kaniel against the Minister of Justice and others" (1973), Israel, the Sun of Israel clearly stated that "with our constitutional system, the decision of the Knesset as legislative power is the law, while the judicial authorities must comment on the solutions of the Knesset and implement them and not cancel or change them. " Note that Israel's Armed Forces did not consider it necessary to threaten the consideration of such claims: so, in 1981-1982. The court repeatedly canceled the legislative acts adopted by the Knesset as not corresponding to the Basic Law on Knesset. In recent years, this practice has become ubiquitous; Moreover, on September 24, 1997, the Supreme Court for the first time acknowledged one of the provisions of the law adopted by the CNN anti-constitutional law than finally approved itself as a constitutional control body as a "negative legislator" 22. Thus, the authority of the acts of the Sun of Israel is quite high, and the consequences of decision making are reduced to the creation of mandatory precedents, although at different time periods its position has changed on the reasons close to political.
Article 81 of the Constitution of Japan dated May 3, 1947, the ratio of the powers of the Supreme Court of Japan (hereinafter - the Japan Sun) and other branches of power in the constitutional control: the Supreme Court is the court of supreme instance, to solve the question of the constitutionality of any law, the order, Prescriptions or other official acts. If the law is recognized as an unconstitutional copy of the decision is sent to parliament and the Cabinet. The feature of the constitutional control
20 See: Testorian E. E. Features of the legal status of the Supreme Court of Israel as a judicial constitutional control authority: dis. ... Cand. jurid science M., 2012. P. 19.
21 For example, by rejecting all the claimed claims, at the end of 2010, on a fair basis, he allowed more than a ten-year dispute about the return of Russia Sergiyev Orthodis in the center of Jerusalem. As in Switzerland, Israel's Sun is the highest judicial body, endowed with the functions in the sphere of not only the constitutional, but also administrative, civil and criminal justice.
22 See: Epstein. The socio-political consequences of strengthening the status of the Supreme Court as the dominant structure in the political life of the country // Modern Middle East. 1999. No. 8. P. 223-243.
la lies in the fact that the question of the constitutionality of the law is solved out of connection with the consideration of criminal or civil affairs (unlike Switzerland and Israel, whose legislation is focused on monitoring a specific case). The lawsuit on the anti-constitutionality of the regulatory act should be filed in the court of first instance. In fact, certain starts of constitutional control can be found in the activities of lower vessels23.
It is interesting to observe the processes of the formation of constitutional justice in Islamic states, which are now a kind of "laboratory", which binds the main models of constitutional control, but taking into account their specifics. At the same time, in some states, they are mainly aimed at activities as a "negative legislator", and in some - as a "positive". For example, in Bahrain, where the main source of legislation is Sharia, Art. 106 of the Constitution of February 14, 2002 is devoted to the Constitutional Court of Bahrain (hereinafter - COP Bahrain). Its competence includes compliance with the constitutionality of laws. Judicial decision The fact that the text of the law or the resolution is not constitutional, has a direct action. Thus, if the decision of the COP Bahrain on unconstitutionality refers to the text of the Criminal Code, the indictments made on the basis of such text are considered invalid and have no legal force. The court decision is generally binding. Based on these provisions of the Constitution of Bahrain, it is possible to draw the following conclusion: The formulated legal position of the COP Bahrain will not only be used to cancel non-constitution
23 So, after the elections in December 2012, two groups of lawyers filed claims in 14 vessels of various areas of the country demanding to cancel the election results in a total of 31 policies. The reason for filing lawsuits was the difference in the number of votes needed to receive the deputy mandate due to different density of the population in constituencies. In the elections in the densely populated areas, the candidate was required to gain 2.43 times more votes than in the unclosed districts. Thus, the equality of voters was violated, which forced the courts to make a decision on the discrepancy between the establishment of the country's constitution, which guarantees equal voting rights to all citizens.
Bibliographic list
online laws, but also applied on specific criminal and other cases, planning a tendency to "positive" law-conducting activities.
The role of the constitutional control body as a "negative legislator" can be indicated in the main law of the country and in cases where the full-fledged control institution is generally absent, and part of its functions is assigned to the highest judicial body of general jurisdiction. For example, in Nicaragua it is actually no. However, paragraph 17 of Art. 229 of the Constitution of Nicaragua dated November 19, 1986 establishes the right of the country's Supreme Court to take on the preliminary hearing the conclusion of the prosecutor's office, the final decision on legal power Legislative acts, against which the protest executive authorities, or acts submitted by the Supreme Court, are declared against the Constitution, to obtain a statement about their constitutionality from him. At the same time, the Supreme Court is the supreme body of the judiciary, entitled to consider concrete matters on the merits. Note that the implementation of constitutional control is limited by a circle of regulatory acts, relative to the constitutionality of which there are doubts about the prosecutor's office - a body supervising the execution of laws, which can make conclusions on their compliance with the Constitution of Nicaragua, which is preliminary.
The Supreme Court of Bolivia in accordance with paragraph 5 of Art. The 145 of the Constitution of Bolivia dated January 25, 2009 also belongs to the right to consider in the only instance of the case of a purely legal nature, which depends on the recognition of a constitutional or non-confidential law, a decree or decree. Accordingly, in the Bolivian Constitution, the implementation of the Constitutional Justice acts as a private event of the implementation of justice. However, the consideration of cases of conformity or inconsistency of the Constitution of other laws, as in Russia, is given the status of exclusively issues of law.
Thus, the functions of the "negative legislator" performed by the constitutional control body are inherent in any of the well-known models of its implementation, they have common features and at the same time defined specifics due to the construction of the domestic legal system.
Brest D. Congress AS A Constitutional DecisionMaker // Georgia Law Review. 1986. No. one.
Bustamante T. Evanilda de Godoi Bustamante Constitutional Courts AS "Negative Legislators": The Brazilian Case // Revista Jurídica Piélagus. 2010.
Holmes O. Collected Legal Papers. Hartcourt, 1920. Salmond J. JurisPrudence. L., 1907. 288. Scottish Legal System. Bernam W. Legal system USA. Vol. 3. M., 2006.
Garner D. United Kingdom: Central and local self-government. M., 1982.
Testorian E. E. Features of the legal status of the Supreme Court of Israel as a judicial constitutional control authority: dis. ... Cand. jurid science M., 2012.
Casas Bamonde M. E. Spanish experience // Bulletin of the Constitutional Court of the Republic of Belarus. 2010. No. 3. Klisis A. A. "The Procedure of Direct Amparo": Legal Fundamentals of the Organization and Constitutional Jurisdiction // Russian investigator. 2006. number 5.
Kuznetsov V. F. Judicial System of England and Russia: a comparative analysis // Bulletin of the Chelyabinsk University. 2004. No. 1.
Matinan M. A. Place and role of law in the system of sources of law of England // Society: politics, economy, right. 2008. № 2.
Polenina S. V. Faithful precedent in the Russian Federation - reality and prospect // Representative power. 2002. № 5-6.
Friedman L. Introduction to American Law. M., 1992.
Epstein A. Socio-political consequences of strengthening the status of the Supreme Court as the dominant structure in the political life of the country // Modern Middle East. 1999. No. 8.
Yaag T. Constitutional courts as "positive legislators": the experience of Switzerland // Bulletin of the Constitutional Court of the Republic of Belarus. 2010. № 3.
BENNION F. STATUTORY INTERPRETATION. L., 1984.
Brest D. Congress As a Constitutional DecisionMaker. Georgia Law Review. 1986. No. one.
Bustamante T. Evanilda de Godoi Bustamante Constitutional Courts AS "Negative Legislators": The Brazilian Case. Revista Jurídica Piélagus. 2010.
Holmes O. Collected Legal Papers. HARTCORT, 1920.
Salmond J. JurisPrudence. L., 1907. 288. Scottish Legal System.
Bernam U. Pravovaya Sistema Ssha. VYP. 3. M., 2006.
Garner D. Velikobritaniya: Tsentral "NOE I Mestnoe Samoupravlenie. M., 1982.
Zadvoryanskiy E. E. OSOBENNOSTI PRAVOVOGO STATUSA VERKHOVNOGO Suda Izrailya Kak Organa Sudebnogo Konstitutsionnogo Kontrolya: Dis. ... kand. Yurid. Nauk. M., 2012.
Kasas Baamonde M. E. ISPANSKIY OPYT. Vestnik Konstitutsionnogo Cuda Respubliki Belarus. "2010. No. 3. Klishas A. A." Protsedura Pryamogo Amparo ": Pravovye Osnovy Organizatsii I Konstitutsii. RossiySkiy Sledovatel. 2006. No. five.
Kuznetsov V. F. sudebnaya Sistema Anglii I Rossii: Sravnitel "Nyy Analiz. Vestnik Chelyabinskogo Universiteta. 2004. No. 1. Matinyan M. A. Mesto I ROL" Zakona V Sisteme Isstochnikov Prava Anglii. Obshchestvo: Politika, Ekonomika, Pravo. 2008. No. 2. Polenina S. V. Sudebnyy Pretsedent V Rossiyskoy Federatsii - Real "Nost" I Perspektiva. Predstavitel "Naya VLAST". 2002. No. 5-6.
Fridman L. Vvedenie v Amerikanskoe Pravo. M., 1992.
EPPSHTEYN A. SOTSIAL "NO-POLITICHESKIE POSLEDSTVIYA UKREPLENIYA STATUSA VERKHOVNOGO SUDA KAK GLAVENSTVUYUSHCHEY STRUKTURY V POLITICHESKOY ZHIZNI STRANY. SOVREMENNYY BLIZHNIY VOSTOK. 1999. No. 8.
Yaag T. Konstitutsionnye Sudy Kak "Pozitivnye Zakonodateli": Opyt Shveytsarii. Vestnik Konstitutsionnogo Suda Respubliki Belarus. "2010. No. 3.
On the eve of the day of the Constitution, Vladimir Putin accepted the judges of the Constitutional Court in the Kremlin.
Such meetings on the eve of the Constitution Day became traditional. This year marks 13 years since the adoption of the Basic Law and 15 years of the Constitutional Court of the Russian Federation.
By calling the Constitutional Court by the main keeper and interpreter of the Basic Law, the President noted:
"At the last meeting, we talked on a wide range of problems, and you set a lot of questions. You know that all these issues are working at different stages of legislative design. Some issues have been solved. For example, you talked about the need to restore property in the criminal legislation of property confiscation According to some kind of crimes. You know that this question is closed, the decision is made.
I believe that today we will continue to discuss the problems that you consider the most important and urgent. It will concern a wide range of issues, since the Constitutional Court is actually either a direct or indirect relationship. "
Then the word was provided to the head of the Constitutional Court - V. Zerokin. He appealed to the president with a retaliatory speech:
"Dear Vladimir Vladimirovich!
Thank you for finding time to meet us, take us. For us, this is a big sign, and it turned into a tradition, because already the year in the days when the next anniversary of the Constitution comes, we are here.
You told about the custodian of the Constitution, but we have a guarantee of the Constitution. And I think that, probably, when the efforts of all the authorities and the will of our citizens are connected, then, probably, you can live on the constitution and make it strong.
Our russian Constitution It has one essential, remarkable quality: it refers to difficult to changeable constitutions. And there is, of course, in this, and there is, there may be disadvantages. But now the advantages outweigh, because at the stage, when it is difficult to society, the state, there are transformations in different areas, which are not yet completed - and evidence of this is changing legislation in these years - it is important to keep this common framework, a common frame for The society did not shake on the right left, from left to right. And under these conditions, the role and presidential power, which is quite strongly laid in our Constitution, and the role of the Constitutional Court as an interpreter of the Constitution. This task is responsible, especially in conditions when we did not come to such a turn of stability, which countries came out that already, say, two hundred or three hundred years are going along the way of approving the principle of rule of law. In Russia, only for another 15 years are these transformations (in any case, during the life of the Constitutional Court: he is 15 years old, and the Constitution - 13).
Under these conditions, it is important to withstand this line on the stability of the Russian legal space, the Russian legal system. And here the temptations are great - and the examples were in the activities of our Constitutional Court, and our colleagues abroad. Let's say, the constitutional courts of Hungary, Poland at one time, seeing the principle of the social state, which is called, rushed, but you can rush and get certain consequences - how to fulfill it all?
Therefore, we, on the one hand, are forced to defend this principle. On the other hand, of course, we are dealing with the reality that these norms are superimposed on social state. It is important to emphasize here, and we would like to tell you, partly we told it last year that, of course, many unsolved problems related to our life costs, which are reflected in the legislation. Let's say that the solid problems of social legislation are the so-called 122nd law. Life showed that, of course, you need to reform the social sphere. But now it is quite obvious that it would be better to do this, then there would not have been so much costs and the problems of the legislator, the executive and the Constitutional Court, because to one quarter of all complaints, petitions, appeals to the Constitutional Court are related to these problems. The quantity does not decrease, and servicemen and pensioners are also treated, and other persons employed in the field of hired labor, those who are busy in the public service. Obviously, costs here were big.
The Constitutional Court understands this problem, but we cannot make some kind of concern. Of course, we measure the quality of this law or other specifying this law of acts from the point of view of the Constitution. It seemed to me that yet we made decisions that help society and the state to solve problems here.
Another sphere is the protection of personal rights of citizens. It should also be noted that the costs of legislation, despite the fact that it is new, reformed, is evident. You told about the problem of confiscation. But we assume that at this stage it is like in those problems that stood, it is now closed while. But, let's say, another sphere with which the Constitutional Court was related is criminal procedural rights that are aimed at protecting citizens. There are no words, of course, after the totalitarian period, the main task was to protect a person from possible non-states by the state, arbitrary actions in the field of the criminal process. Therefore, the main tasks of the developers of the new Criminal Procedure Code naturally saw in protecting the rights of the accused primarily. Unfortunately, it turned out throughout. Forgot about no less important component, which forces the balance of constitutional values \u200b\u200bby the Constitutional Court, is the problem of the victim of the crime. Because criminal law is aimed primarily to protect society from crime, but civilized means. It is clear that it is impossible to be wade a stick even on the dog, and even more so on the accused, but you can not forget about the other side, about those who suffer huge costs from criminals. And we had several decisions after our meeting, which are directed just on solving this problem. Here you can mention the decisions of 2005 and 2006, which dottedly helped to fix this situation.
Of course, the Constitutional Court is not a legislator in his own sense. Rather, he, as they say a negative legislator, is a kind of electronics, which finds contacts in a broken network and gently glues them ... "
Dear colleagues, today I suggest you to appreciate the new unique case through the prism of the role of the Constitutional Court as the last remaining real court in our country.
There are a large debtor (debt amount of about 130 million), numerous lenders, accordingly, among which one main, in front of which a debt of about 80 million is allocated, and it is the main thing not only in the amount, it is also a mortgagee of the only expensive debtor asset - apartments . By the decision of the Court of 2011, his debt was recovered, recovery for an apartment with the establishment of an elementary sales price of 178 million rubles. It is important moment: The pledger (my debtor) is a guarantor and mortgagor for this debt.
The lender behaved badly)) presented and responded to the executive list (twice), I tried on the basis of this to challenge the mortgage, managing the wonderful PP of the Russian Federation № 2339/14 of June 17, 2014 (who did not read, very much recommend, in my opinion, In it, the judges of you for a couple of years overtook the COP in the situation, about which it will be discussed below) everything is in vain, the judges of the Moscow City Court only divided their hands and said where you were, but where is the general jurisdiction, well, what nonsense.
Lenders were getting closer, the debts are higher, the deposit was solid, like a rock and suddenly ...
It turns out to be extremely progressive, very cool written, the decision of the CS of the Russian Federation of March 10, 2016 No. 7-P, where someone c. Rostovtsev was indignant by such an inappropriate behavior of the recoverer (repeated feedback executive Sheet), and the CS of the Russian Federation won all his arguments and said his weighty: "It is no longer on the Earth of Russian," from now on, all the abuse of the lender will be punished, the period of presentation of the executive list to execution will be considered differently and everyone will consider it any other way. So it happened ...
Our lender, nor the spirit of new trends, submits in February 2017, is the long-suffering executive list from 2011 (for the appeal of recovery), for the third time. With the hope that this time everything is crowned with success (the benefit of the subject of the pledge for these 6 years, he reduced to the amount of debt), and here, on the first time, we immediately pass the complaint, and on the basis of the above decision of the CS of the Russian Federation, the creditor refuse to initiate enforcement proceedings, Saying that all the shops are covered, read that smart people wrote to you.
The creditor would go this decision of the baits to challenge the court, to lose everything in the fluff and dust and calm down, but here it becomes quite bad, he responds with a bank license and now instead there is a QA, who has decisions of the Russian Federation, naturally, We are considering the state here, what will indeed us.
The DSA is asked: since our executive production did not work out. Let's start bankruptcy, but in bankruptcy, too, a bang :-), the decision of the CS of the Russian Federation, we also read, you have no deposit. The bankruptcy judge is trying to figure out how many sheets was issued in 2011, the ASV burst something wrong, so because of the illiteracy of representatives of the judge, bankruptcy does not introduce (the list for recovery money I have never responded, so from 11 years at the baits and lies, i.e. You can excite bankruptcy, but the requirements should not be collateral) makes a definition of termination of production in the case with motivation: COP said you said you read? Plus 10 The article is still there, you know? Here there is a speech about you, familiarize yourself.
ASV would calm down, but no, Appeal and Appeal, tries to reach the instance, which the judicial act will finally read completely and understands everything that they are so illiterate to convey ...
Meanwhile, parallel to the DCA sues general jurisdiction An inconspicuous, small application on one leaf: "I ask the deadline for the presentation of the executive list to the execution to restore!". Meshchansky district Court As always, without coming into consciousness and not counting the need to notify the debtor, this term takes and restores, without any motivation, simply the DCA is not the old lender bad, the DRA is good, the DSW will not pass, but what is the COP? And we did not hear, the debtor was not, nobody told us, and we ourselves are not local.
Disagreeing with this definition, we go to Svetom jurisprudence - the Moscow City Court, defending a little behind justice (long in six months). Our private complaint Finally, they are also taken, the babies, we really were not notified, it means to restore the term to the creditor to cancel, proceed to consideration according to the rules of the first instance.
Well, once according to the rules of the first, so let's go again (read for the first time) to study. We are discussing, we argue, and the troika mows on us somehow suspiciously and here comes: "Wait? And you are not an hour, not letting it see for a year ago, came to us here in this composition to stop the deposit, remember? And we denied you, because the abuse is not proven, and now we have even better here: your lender you have a new beautiful elegant, do you need to mislead the court? "
We, naturally, answer: Now the situation is different, look, there is the COP of the Russian Federation, he said so and so, there are those who have entered into force the decision of the ASGM and 9Aas on the cessation of bankruptcy, where separately about the abuse of the lender's right, and the fact that the lender is new, well, the right We are not ordinary people, we have a complete succession due to a license revocation, the personality of the lender here is not at all important not on the alimony after being sued.
But the Troika Mosh City Court "reflects" as always where the COP and arbitration, they are far away in another legal reality, outside the universe, and we are on the spot we will create our enforcement .... We are of course Definition from summer 2017 cancel (you are still there in The court was not - we recognize), but we accept the new one.
Term to restore.
After that, we give a lawsuit to the attacks, show see the Moscow City Court said that you had a permanent executive production for half a year, the definition was canceled. Yes, the new one is accepted, but the deadlines are so important, but the bailiffs, and then again the Meshchansky District Court, tell us: what dates, everything is fine, we finally accept the time here, here we even pay attention to the materials of the enforcement proceedings. from DSU: "I agree to accept property due to the fact that two traders did not take place ..."
And here, unexpectedly, the Armed Forces decided to intervene in our case, the QUI with the perseverance of the Baran with his complaint to the cessation of bankruptcy was reached by 4 instances. Multukemable judge of the minds gathering says: the citizens of the debtors are all and so it is clear that there is no deposit (the first judge who said it), but admit, a sheet cash duty Still at the baits, it means let's take a bankrupt and sends the case to the second round. Now it's waiting for how the heavenly motivation of Sun, and suddenly about the essence of the collateral, in the context of the opinion of the COP of the Russian Federation after all, what is obvious to Razumov, it is not so obvious to the meshness ...
As a result, returning to the title issue:
How to overcome a large-scale resolution of the CS of the Russian Federation fully changed the practice of calculating the timing of the executive list to execution?
Everything is very simple, go to the Meshchansky district court and apply on one leaf: "I ask the period to restore ..."
