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1
Sinani, Blerton. « Global Patterns of Constitutional Judicial Review Systems : Two Major Models of Constitutional Judicial Review in the World ». Juridical Tribune - Review of Comparative and International Law 14, no 1 (25 mars 2024) : 156–73. http://dx.doi.org/10.62768/tbj/2024/14/1/10.
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Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models. Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models.
2
van der Schyff, Gerhard. « Constitutional Review by the Judiciary in the Netherlands : A Bridge Too Far ? » German Law Journal 11, no 2 (11 février 2010) : 275–90. http://dx.doi.org/10.1017/s2071832200018526.
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One could be forgiven for thinking that constitutional review by the judiciary is invariably part of modern constitutionalism. Gone are the days that constitutions contained provisions that prevented the courts from testing the constitutionality of legislation, such as section 59 of South Africa's now repealed Constitution of 1961 that forbade the courts from inquiring into or pronouncing on the validity of legislation. It has come to be accepted in many quarters that a constitution presupposes judicial review in some form or another in gauging the integrity of legislation, instead of only relying on legislative wisdom as before. An attitude that echoes the views expressed inMarbury v. Madisonby Chief Justice Marshall of the United States Supreme Court, that by its very nature a written constitution implies judicial control. However, the Constitution of the Netherlands proves to be an exception in this regard, as section 120 states emphatically that:The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.
3
Judijanto, Loso, Zulfa Zainuddin et Isnanto Bidja. « Analysis of the Role of the Constitution, Legislature, and Judiciary in Maintaining the Principles of Government Effectiveness in Indonesia ». West Science Law and Human Rights 2, no 01 (29 janvier 2024) : 45–52. http://dx.doi.org/10.58812/wslhr.v2i01.604.
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This research conducts a thorough document analysis to examine the roles of the Constitution, Legislature, and Judiciary in maintaining government effectiveness in Indonesia. The historical evolution of the Indonesian Constitution is explored, emphasizing its dynamic nature and adaptability to the nation's political and societal changes. The study delves into the separation of powers, constitutional safeguards, and specific provisions influencing government effectiveness. Legislative analysis scrutinizes key acts shaping government operations, emphasizing the role of the legislature in oversight and accountability. Judicial analysis focuses on judicial review, the enforcement of the rule of law, and the judiciary's contributions to legal precedents. Interactions between the three pillars are examined for collaborative synergies and potential challenges. Comparative perspectives and implications for policymakers and legal scholars are discussed, along with recommendations for enhancing government effectiveness. The research identifies future research directions, contributing to a nuanced understanding of the governance landscape in Indonesia.
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Timoshina, E. V., et A. A. Kraevsky. « Criteria for the normativity of interpretative legal acts in Russian judicial practice ». Law Enforcement Review 6, no 4 (25 décembre 2022) : 220–43. http://dx.doi.org/10.52468/2542-1514.2022.6(4).220-243.
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The subject. The article focuses on the concept of acts which clarify legislation and have normative properties (acts with normative properties, or ANPs). This concept was introduced in Russia’s procedural legislation in 2016 in order to allow such acts to be challenged by way of judicial review. ANPs are different from normative acts and, in accordance with the established doctrinal classification, can be described as interpretational acts.The purpose of the article is to examine the nature of ANPs and the way in which Russia’s courts decide judicial review claims which seek to challenge ANPs.The methodology includes interpretation of Russian procedural legislation and analysis of doctrinal researches on judicial review of ANP. The authors also analyze the materials of the empiric monitoring of judgments in ANP judicial review cases and ascertain the criteria of normativity which are relied upon by Russia’s courts when identifying ANPs and distinguishing between ANPs and other legal acts – primarily, between ANPs and normative acts. The main results, scope of application. The authors describe the drafting defects in the procedural legislation and maintain that the statutory definition of ANP lacks clarity. The authors put forward their own definition of ANP as distinguished from normative acts, on the one hand, and acts that apply legal norms, on the other hand. The authors argue that, in contrast to normative acts, ANPs not only lay down the will of the issuing authority, but also have a knowledge acquisition (cognitive inquiry) component in them. There is a logical and semantic link between the content of an ANP and the norms which are contained in a normative act and are interpreted by the ANP. In contrast to an act of legal application, the validity of an ANP depends not only on the competence of the authority that issued the ANP, but also on the validity of the normative act interpreted by the ANP. Further, acts of legal application, but not ANPs, establish a logical correspondence between individual objects and the general concepts used in legal norms.The authors also analyze the doctrinal works on judicial review of ANP. The scholars who criticize the introduction of this procedure in the legislation believe the concept of ANP to be superfluous for various reasons and argue that ANPs are either non-normative acts or defective normative acts. The authors of this article, however, maintain that the scholars who criticize the concept of ANP do not take into account the special nature of ANP normativity – i.e., normativity of interpretational acts. The authors put forward a hypothesis regarding the way in which courts are likely to treat ANP judicial review cases, describe the materials of the empiric monitoring, and then provide the statistical result of the said monitoring.Conclusions. The analysis of the content of judicial acts allowed the authors to identify five types of interpretational collisions between the original legislative norm and its interpretation (clarification) in an ANP. The reasoning of the courts was analyzed to reconstruct the criteria used by the courts to establish whether a challenged legal act has normative properties. The authors identified that the courts consider that there are two ways in which an ANP can acquire normative properties: either through the expression of the will of the issuing authority or through actual application of an ANP. The authors describe the criteria of both types of ANP.The authors conclude the article with the description of the main problems revealed during the monitoring and propose their possible solutions.
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McCorkindale, Christopher, et Janet L. Hiebert. « Vetting Bills in the Scottish Parliament for Legislative Competence ». Edinburgh Law Review 21, no 3 (septembre 2017) : 319–51. http://dx.doi.org/10.3366/elr.2017.0433.
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In this article, Christopher McCorkindale and Janet Hiebert present the first empirical examination of the process by which bills in the Scottish Parliament undergo vetting for legislative competence. Based on a series of interviews with officials in the Scottish Government, Scottish Parliament and UK Government the paper makes a two-fold argument. First, that – despite the susceptibility of Acts of the Scottish Parliament to strong-form judicial review – the statutory requirement that the responsible minister and the Presiding Officer report to parliament on the competence of every bill, and the discretion of the Scottish and UK Government Law Officers to refer any bill to the Supreme Court before Royal Assent, align the devolution scheme with an emerging family of systems that favour legislative to judicial constitutional review. Second, that the deference shown by political actors to the advice of officials on questions of competence at each stage supplants legislative review – and its aspiration to engender a new culture of constitutional engagement – with a more closed form of bureaucratic review.
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Leonelli, Giulia Claudia. « Judicial Review of Compliance with the Precautionary Principle from Paraquat to Blaise : “Quantitative Thresholds,” Risk Assessment, and the Gap Between Regulation and Regulatory Implementation ». German Law Journal 22, no 2 (mars 2021) : 184–215. http://dx.doi.org/10.1017/glj.2021.3.
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AbstractThis Article frames the precautionary principle as an inner limit to the EU institutions’ broad discretion in the field of EU risk regulation, contextualizing recourse to the principle against the more encompassing backdrop of socially acceptable risk approaches. On these grounds, it inquires to what extent the precautionary principle may be successfully invoked in challenges to acts which are deemed insufficiently protective. The opening sections set the ground for the analysis. The third section analyzes challenges to regulatory acts, arguing that the Court has followed a quantitative threshold approach. This is legally tenable and appropriate; however, it cannot do justice to the true nature of the precautionary principle. The following sections analyze cases involving legislative acts. This includes an in-depth examination of the recent Blaise case, which has put judicial review of compliance with the precautionary principle under the spotlight. Against this overall background, this Article concludes that judicial review can hardly do justice to the precautionary principle, as applicable to the risk management process and underpinning EU legislative frameworks. It will ultimately rest on EU risk managers and EU legislators to ensure that the principle is applied and that its overarching goals are pursued.
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Susło, Joanna. « Granice umocowania prokurenta samoistnego ». Przegląd Prawa i Administracji 115 (26 février 2019) : 57–67. http://dx.doi.org/10.19195/0137-1134.115.4.
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DELIMITATION OF ACTIONS UNDERTAKEN BY AN INDEPENDENT PROXYThe article presents the scope of an independent proxy authorization and reviews the provisions where a controversy arises in academic interpretation. The paper primarily focuses on the exemplification of the acts performed by the proxy by regrouping those acts into judicial, non-judicial and commercial ones. Finally, the author draws attention to a catalogue of the activities that can be undertaken by an independent proxy provided that he receives the special power of attorney. The catalogue placed in the Civil Code is not clear for both: the judiciary and the doctrine, thus it should be changed by the legislator. This study provides the readers with de lege ferenda solutions on the legislative vacuum of the independent proxy regulation.
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Bernaziuk, O. O. « Judicial precedent in the legal system of Ukraine : modern approaches to the definition of the concept ». Uzhhorod National University Herald. Series : Law 1, no 80 (22 janvier 2024) : 403–10. http://dx.doi.org/10.24144/2307-3322.2023.80.1.60.
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The article reveals the modern concept of a legal opinion of the Supreme Court and substantiates the opinion that such an opinion is characterized by a significant number of signs of judicial precedent.
A review of scientific approaches to understanding the place and role of court precedent in general and its presence in the legal system of Ukraine was conducted. It has been clarified which features of the legal position of the Supreme Court give it the properties of a judicial precedent, and also the ever-increasing importance of knowledge and use of the legal positions of the Supreme Court in the activities of all civil servants, lawyers, as well as representatives of other professions who apply the relevant norms in their work has been proven legislation.
Based on the review of scientific concepts and approaches to understanding the concept of “judicial precedent”, the author proposed an improved definition of this concept. It has been proven that a judicial precedent (stare decisis) is a legal conclusion formulated during the consideration of a specific case in the decisions of the courts of higher instance regarding the method of application of the norm of substantive or procedural law. It is argued that the judicial precedent is designed to ensure the formation of a unified approach in matters of interpretation of this norm, resolution of contradictions or gaps in legislative regulation, and is mandatory for application when courts resolve disputes in similar legal relationships.
The author proved that judicial precedent is a source of judicial law-making, in the process of which a new rule of law (rule of conduct) is not created, but a mandatory method of applying the rule of law is determined, a unified approach to resolving contradictions between norms of legislative acts (overcoming conflicts) or filling gaps in legislative regulation. It is argued that a certain exception can be considered legal conclusions formed in the process of applying the analogy of law and analogy of law by the court to normalize the established gap in the legislative regulation of certain social-administrative legal relations.
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Iristian, Yovan. « Ensuring Administrative Legality and Justice Through Judicial Review In Indonesia ». Journal of International Multidisciplinary Research 2, no 3 (31 mars 2024) : 214–34. http://dx.doi.org/10.62504/jimr390.
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Within the context of the Indonesian legal system, this study investigates the crucial function that judicial review plays in ensuring that administrative procedures are lawful and that justice is served. This study sheds light on the techniques, processes, and issues that are involved with judicial review in relation to administrative acts. It does so by conducting a comprehensive analysis of judicial decisions, legal precedents, and legislative frameworks. The paper provides an in-depth analysis of the development of judicial review in Indonesia, following its historical progression and analysing the current state of affairs. Through an in-depth analysis of administrative decisions, it examines the role that the court plays in ensuring that administrative procedures are valid, preserving a system of checks and balances, and protecting fundamental rights. The impact of judicial review on administrative institutions and the legal landscape is also investigated in this study. Particular attention is paid to the role that judicial review plays in promoting openness, accountability, and adherence to the rule of law for administrations. The purpose of this research is to give useful insights into the efficient operation of Indonesia's administrative governance and the improvement of justice in administrative procedures. This is accomplished by casting light on the junction between judicial review and administrative law.
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Werkmeister, Christoph, Stephan Pötters et Johannes Traut. « Regulatory Acts within Article 263(4) TFEU–A Dissonant Extension of Locus Standi for Private Applicants ». Cambridge Yearbook of European Legal Studies 13 (2011) : 311–32. http://dx.doi.org/10.5235/152888712801753022.
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AbstractThe Treaty of Lisbon introduced an extension of locus standi for private claimants by amending Article 263(4) TFEU. The provision contains a new third variant for actions against ‘regulatory acts which do not entail implementing measures’. However, it is far from clear to what extent the existing framework has actually been reformed. The CJEU has not yet had the opportunity to define the term ‘regulatory act’. In our view, this term has to be interpreted narrowly. It merely encompasses non-legislative acts enacted under Articles 290 and 291 TFEU. Those subordinate legal acts are characterised by a lack of democratic legitimacy, which justifies a lower threshold for judicial review. Hence, the possibilities for an action for annulment remain limited for private applicants. Effective remedies against legal acts of EU law are provided primarily by the courts of the Member States. The tentative reforms brought by the Treaty of Lisbon did not change the decentralised structure of the EU’s judicial system.
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Werkmeister, Christoph, Stephan Pötters et Johannes Traut. « Regulatory Acts within Article 263(4) TFEU–A Dissonant Extension of Locus Standi for Private Applicants ». Cambridge Yearbook of European Legal Studies 13 (2011) : 311–32. http://dx.doi.org/10.1017/s1528887000002068.
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Abstract The Treaty of Lisbon introduced an extension of locus standi for private claimants by amending Article 263(4) TFEU. The provision contains a new third variant for actions against ‘regulatory acts which do not entail implementing measures’. However, it is far from clear to what extent the existing framework has actually been reformed. The CJEU has not yet had the opportunity to define the term ‘regulatory act’. In our view, this term has to be interpreted narrowly. It merely encompasses non-legislative acts enacted under Articles 290 and 291 TFEU. Those subordinate legal acts are characterised by a lack of democratic legitimacy, which justifies a lower threshold for judicial review. Hence, the possibilities for an action for annulment remain limited for private applicants. Effective remedies against legal acts of EU law are provided primarily by the courts of the Member States. The tentative reforms brought by the Treaty of Lisbon did not change the decentralised structure of the EU’s judicial system.
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Nematov, Jurabek. « TRANSFORMATION OF SOVIET ADMINISTRATIVE LAW : UZBEKISTAN’S CASE STUDY IN JUDICIAL REVIEW OVER ADMINISTRATIVE ACTS ». Administrative law and process, no 1 (28) (2020) : 105–25. http://dx.doi.org/10.17721/2227-796x.2020.1.08.
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Judicial protection against individual and normative acts of the public administration continues to be problematic in Uzbekistan. One central reason for this mischief is the continuing prevalence of Soviet-style ideas and patterns in legal thinking as well as the legal practice. This article describes the problems of jurisdictions face when trying to overcome their Soviet heritage by developing legal protection in administrative matters, and analyses the strategies for the improvement of this situation. Key factors are a comprehensive and harmonised development of administrative procedure and administrative litigation in the field of legislation, and what might be termed a “constitutionalisation” of legal thinking, theory and teaching – i.e. the respect for values enshrined in Constitution such as the rule of law and access to judicial protection against the public administration – in the field of legal science. Uzbekistan is a good example how foreign partners and donors of international legal assistance can help strengthen these factors. This paper explores (1) to what extent Soviet thinking on judicial review over administrative acts has been set aside or to what extent is it still alive in today’s Uzbekistan, and (2) what are the transformation points of judicial review. Overall, I argue that Soviet thinking on judicial review over administrative acts has big change in legislation level under new regime of Uzbekistan, however legal reforms are not still accepted by legal practice, doctrine and legal education. To analyse these statements, the first step is to describe the main characteristics and legal reforms on judicial review over administrative acts taken in Soviet period (part II). Part III and IV analyses the current legal system and judicial practise of Uzbekistan. Lastly, I map out recent steps taken to introduce some reforms in the field of judicial review over administrative acts in Uzbekistan (part V).
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Alvarez, Jose E. « Judging the Security Council ». American Journal of International Law 90, no 1 (janvier 1996) : 1–39. http://dx.doi.org/10.2307/2203749.
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Should the International Court of Justice (ICJ) “judicially review” Security Council decisions? The question, once fanciful, is now being asked seriously by litigants in and judges on the World Court, nonpermanent members of the Security Council that consider it an “undemocratic” body acting as “a cloak for a new form of imperialism,” and scholars worried about its recent “quasi-legislative” or “quasi-judicial” acts. The recent throng of commentators and advocates includes students of realpolitik warning the Court against any unrealistic attempt to transform the United Nations collective security scheme into a constitutional structure of checks and balances, and legalists grasping hopefully for hints of Marbury v. Madison in recent World Court pronouncements.
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Gersdorf, Małgorzata, et Mateusz Pilich. « Judges and Representatives of the People : a Polish Perspective ». European Constitutional Law Review 16, no 3 (septembre 2020) : 345–78. http://dx.doi.org/10.1017/s1574019620000206.
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Relations between the judiciary and the elected authorities (i.e. the legislative and the executive) in each country and at all times are among the most sensitive from the point of view of statehood. There is an obvious truth expressed in the famous saying of Lord Acton: ‘Power tends to corrupt, absolute power corrupts absolutely’2. The universal calling of judges is to restrain executive and legislative branches of government in their efforts to increase their power, especially at the expense of individuals. A state where there is no sufficiently strong counterweight to the natural omnipotence of the people’s representatives is not in line with the principle of the rule of law, because there is no one to remind the elected powers that their mandate has its limits – contemporarily established in particular by constitutional norms and the international regime for the protection of human rights.3 Naturally, courts do not directly take part in a political discourse, even though some kind of judicial review of the acts of public authorities exists virtually everywhere; these should not be characterised as an interference in political matters.4 The mutual respect of the judiciary and elected authorities proves the maturity of the state constitutional system, regardless of how far-reaching the powers are of judges to examine the constitutionality of legislation.
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Hofmann, Herwig C. H. « The Duty of Care in EU Public Law – A Principle Between Discretion and Proportionality ». Review of European Administrative Law 13, no 2 (24 juillet 2020) : 87–112. http://dx.doi.org/10.7590/187479820x15930701852265.
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This article concentrates on the 'duty of care' or 'diligence', a principle that has become ubiquitous in CJEU case law due to its central role in calibrating the intensity of judicial review of EU acts on the legislative, regulatory and single-case decision-making levels. This article explores the development of the principle and critically reviews its use as well as whether it actually achieves the demands placed on it. The article further examines the tools developed and the emergence of the duty of care as a principle conferring individual rights in various procedural contexts. The article describes how the duty of care has become a central link between on the one hand, a separation of powers-inspired respect for discretion of the institutions and bodies of the EU and, on the other hand, ensuring a rule of law based effective review of the legality of acts – a central feature in the EU specific approach to developing proportionality.
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Cezar Dias, Paulo, et Heitor Moreira de Oliveira. « The Impact of COVID-19 on Brazilian Judiciary : Reflections on a Justice 4.0 and a 100% Digital Judgment in the Post-pandemic Context ». Athens Journal of Law 9, no 1 (29 décembre 2022) : 9–32. http://dx.doi.org/10.30958/ajl.9-1-1.
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This paper aims to examine the impact that the advent of the COVID-19 pandemic had on the organisation and routine of the Judiciary in Brazil, especially with regard to the expansion of the use of technology in judicial activities. It is not forgotten that the start of the Brazilian Judiciary virtualisation dates to the beginning of the 1990s and, even since 2006, there is a law that deals with the electronic judicial process. However, the pandemic period generated intense investment by the judicial Public Administration in the digital fulfilment of electronic procedural acts, such as videoconference hearings, an alternative found as a way to guarantee the continuity of judicial provision during the period of suspension of face-to-face activities (physical). Like that, the article will approach some of the important innovations that the Brazilian Judiciary suffered during the pandemic, with emphasis on the Justice 4.0 and 100% Digital Judgment. The research was developed under theoretical and hypothetical-deductive methods, based on a broad systematic review of the literature, including books and scientific articles, in addition to consultation of normative acts and legislation. In the end, it is concluded that the pandemic left an unquestionable positive legacy for the Judiciary virtualisation in Brazil in a future post-pandemic context. Keywords: Brazilian judiciary; COVID-19 pandemic; Electronic justice; Justice 4.0; 100% Digital Judgment.
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Podvirna, O., et V. Yakovchuk. « Characteristics of review of economic affairs in the appeal procedure ». Analytical and Comparative Jurisprudence, no 3 (20 février 2022) : 64–68. http://dx.doi.org/10.24144/2788-6018.2021.03.11.
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The right to go to court for judicial protection is an institution of procedural law that regulates the grounds and procedure for violation of judicial activity to protect rights, freedoms and interests.
The legislator divided those who have the right to go to court into those who seek protection of their rights, freedoms and interests, and those who go to court to protect the interests of the state, public interests and the rights, freedoms and interests of others.
In recent years, Ukraine has improved procedural legislation, including economic procedural. Law of Ukraine "On Amendments to the Commercial Procedural Code of Ukraine, Civil Procedure Code of Ukraine, Code of Administrative Procedure of Ukraine and other legislative acts of 03.10.2017 № 2147-VIII, Commercial Procedural Code of Ukraine is set out in a new version, which entered into force on December 15, 2017 As a result of this legislative activity, new institutions of the economic process appeared and those that existed before were improved. The institute of appeals has also been significantly updated, as the procedure for filing appeals and cassation appeals has been changed, the deadline for appeals has been extended, changes have been made to the list of decisions of the court of first instance that can be appealed separately. The mechanism of legal regulation of appeals against decisions of the court of first instance in the economic process is based on the decision of the commercial court of first instance.
In this scientific work the peculiarities of reviewing economic cases on appeal are investigated, the legal analysis of appellate proceedings is carried out. An analysis of decisions that can be appealed separately from the court decision. The signs of appellate proceedings are characterized, the peculiarities of appealing the case to the court of appellate instance are determined, the concepts of appellate, appellate proceedings and appellate stage are formulated.
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Бертовский, Лев, Lyev Byertovskiy, Дина Гехова et Dina Gekhova. « Prosecutor in the Court of Cassation in Criminal Cases ». Journal of Russian Law 4, no 2 (5 février 2016) : 0. http://dx.doi.org/10.12737/17654.
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Federal Law No. 433-FZ «On Amendments to the Criminal Procedure Code of the Russian Federation and the Annulment of Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation» entered into force since January 1, 2013 in relation to the powers of prosecutors to lodge cassation representations against court’s decisions is under review in the article. The authors analyse judicial practice of cassation instance in Moscow City Court of 2014 year on criminal cases and demonstrate some omissions of prosecutors in consideration of cases in the court of cassation. The conclusion shows that a cassation representation should be prepared and submitted by subordinate to higher prosecutor, provided that public prosecutor shall obtain the right to apply directly to that prosecutor who has the right to lodge a cassation representation along with the project thereof. Such novel will positively influence to the quality of cassation representations prepared and made by prosecutors.
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Dyevre, Arthur. « European Integration and National Courts : Defending Sovereignty under Institutional Constraints ? » European Constitutional Law Review 9, no 1 (février 2013) : 139–68. http://dx.doi.org/10.1017/s157401961200106x.
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Response of national highest courts to the ECJ's integrationist agenda – Logic behind qualified acceptance of EU law supremacy and direct effect – Several possible explanations for the observed inter-court variation: the courts’ type and organisation; their power to review legislative acts under domestic law; the rules governing access to the judicial forum; the monistic tradition of the legal system and the level of public support for European integration – Assessment of empirical validity of these hypotheses using a new dataset coding the doctrinal positions and institutional constraints of 34 domestic highest courts – Most correlations small – Only one variable – the power to review statutory legislation under national law – appears to have a significant influence on the courts’ doctrinal response to legal integration – Some support for the argument that the varying institutional constraints and incentives under which highest court judges operate shape the way they accommodate and reconcile two conflicting goals
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Sychev, Vitalii B. « Content and forms of participation of the Constitutional Court of the Russian Federation in lawmaking ». Izvestiya of Saratov University. New Series. Series Economics. Management. Law 21, no 2 (25 mai 2021) : 223–31. http://dx.doi.org/10.18500/1994-2540-2021-21-2-223-231.
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Introduction. The judicial constitutional review authorities ensure the supremacy and direct application of the constitutions. They also participates in lawmaking activities. Constitutional review authorities can participate in lawmaking activities directly or circumstantially. There are two kinds of the direct participation of such authorities in lawmaking activities: legislative initiative and participation in lawmaking activities in connection with the implementation of the constitutional review. The methodology of research is based on general scientific and special legal research methods. Theoretical analysis. Some authors note that the decisions of the constitutional review authorities can modify conditions of public life. Authors often emphasize that court decisions that rules certain norms as unconstitutional have the same goals as statutory acts. Empirical analysis. Constitutional courts administer a special kind of lawmaking, such as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. “Positive” lawmaking is connected with the adoption of statutory acts, which regulate the activities of the constitutional courts. “Negative” lawmaking consists in ruling certain legal norms and sources of law unconstitutional and making them void. By means of “adjusting” lawmaking constitutional courts do not rule the norms as completely unconstitutional, but constitutionally interpret them. “Interpretative” lawmaking consists in clarifying legal norms of constitutions. The constitutional review authorities may also provide recommendations to the legislative authorities. Results. The constitutional review authorities can directly participate in lawmaking activities as a legislative initiative or in connection with the implementation of the constitutional control as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. Circumstantial participation of such authorities in lawmaking activities is administered by adopting special messages.
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Yarkovoy, S. V. « Regulatory Framework and the Procedure for Canceling and Declaring Illegal (Invalid) Administrative Enforcement Acts ». Rossijskoe pravosudie 8 (20 juillet 2020) : 5–14. http://dx.doi.org/10.37399/issn2072-909x.2020.8.5-14.
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The article analyzes the norms of the current federal legislation governing the procedure for non-judicial and judicial review (cancellation, recognition as illegal or invalid) of enforcement acts of executive authorities and other public administration bodies. The Author notes the absence of a unified legal mechanism for the mentioned types of revision and points out the need for its development and consolidation in the federal administrative-procedural legislation. In order to formulate unified general rules for revising administrative enforcement acts, the necessity of solving a number of crucial issues of the theory of illegality (invalidity) of such acts, in particular, their invalidity and viability, defining criteria for their legal assessment, methods and legal consequences of their cancellation, is substantiated and possible answers are offered to these questions.
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Семеновский, Игорь, et Igor' Semenovskiy. « BASICS OF THE JUDICIAL CONSTITUTIONAL REVIEW AND ENFORCEMENT IN RUSSIAN AND BRAZILIAN FEDERAL STRUCTURE ». Journal of Foreign Legislation and Comparative Law 3, no 3 (10 juillet 2017) : 43–48. http://dx.doi.org/10.12737/article_593fc343aac832.56581856.
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This article is devoted to the comparative analysis of bases of legal regulation of the constitutional proceedings and enforcement in the Russian Federation and the Federative Republic of Brazil, whihc are the Member States of BRICS. The author provides a brief overview of the constitutional regulation of the judiciary and a comparative analysis of the models of judicial constitutional control in Brazil and Russia; examines in detail the legal regulation of judicial constitutional control of the two states, including a review of the constitutional regulation of judicial procedures used by the Federal Supreme Court of Brazil. The article contains a few examples of the application by the highest bodies of judicial constitutional control of the constitutional principles of the federal structure and analyzes some decisions of the Federal Supreme Court of Brazil and Constitutional Court of the Russian Federation, which have influenced the development of federalism in these states. On the basis of the study of the basic laws and other acts the author has made a conclusion about the similarities and differences in the legal regulation of judicial constitutional control in the sphere under consideration. So, he marked even more rigid interpretation of the Constitution by the Federal Supreme Court of Brazil, unlike the Russian practice, to the consideration of cases on conformity with Brasilian Constitution, state legislation and other normative-legal acts. For example, Brazilian and Russian federalism specifies and examines the constitutional principle of the Federal structure – the principle of symmetry. The conclusion is that the approach of the Russian legislator and the Constitutional Court of the Russian Federation is more variable to regulate the issues and opportunities change the criteria of construction of models of organization of state power at the level of constituent entities of the Russian Federation with greater freedom in determining the internal structure then in Brazil.
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Rizzardi, Keith. « From Four Horsemen to the Rule of Six : The Deconstruction of Judicial Deference ». Michigan Journal of Environmental & ; Administrative Law, no 12.1 (2022) : 63. http://dx.doi.org/10.36640/mjeal.12.1.from.
Texte intégralRésumé :
In its tumultuous 2022 term, the Supreme Court rebalanced the separation of powers, again. A tradition of self-restraint has evolved through case law and statutes when the judiciary reviews the actions of the other branches of government. The judiciary often accepts congressional judgments as to whether laws are necessary and proper and defers to executive agency interpretations of those congressional acts. The historical notion of judicial deference, however, earned criticism due to concerns about the potential unchecked decision-making power of unelected executive agency bureaucrats. The emerging alternative system might be worse. History offers parallels. During the New Deal, a core group of Supreme Court justices known as the “Four Horsemen” often struck down agency actions or legislative acts, apparently based upon their views of economic policy. But during the “Switch in Time that Saved Nine” that followed, a changing majority of the Court exercised judicial restraint, upholding policy judgments by Congress and the executive agencies. The clock seemingly rewound in 2022, as a new conservative majority of justices declared statutes insufficient and struck down agency actions, embracing a logic akin to their New Deal predecessors. By deconstructing judicial deference, these justices can now impose the Rule of Six and selectively choose the applicable interpretive doctrine to achieve their personally preferred policy outcomes. The fundamental question of American governance is “Who decides?”. In 2022, the unelected Supreme Court expanded its power over both unelected agency experts and elected officials. Inevitably, history will echo, and debates over court reforms will remerge. But for now, in our extraordinary era of emergencies, epidemics, and a climate crisis, six robed riders on horseback have appeared.
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Kuchin, Mihail Victorovich, et Elena Evgenyevna Gulyaeva. « LEGAL RULES CREATED BY COURTS : AN OVERVIEW ». Revista de Direito Brasileira 30, no 11 (16 septembre 2022) : 192. http://dx.doi.org/10.26668/indexlawjournals/2358-1352/2021.v30i11.8421.
Texte intégralRésumé :
We seek to understand the definition of legal rules created by national and international courts. We seek to look into the content of legal rules in Russian legal doctrine by classifying them into three groups. The authors consider the importance of historical background of this issue due to the changes in the international judicial system and Russian procedural legislation. We seek to analyze the phenomenon of a legal rule created by the court. We found out that all the legal rules created by courts could be divided into three main groups, depending on the source: the rules fixed in the normative legal acts of the courts; the rules fixed in normative judicial decisions; and customary legal rules approved by the courts. In general, each of the listed groups of rules has its own characteristics, which are much similar to those of by-laws, precedents, and customs respectively. The legal effect of the rules created by the court is various and depends on what body introduces a rule. The authors concluded that the rules fixed in the Resolutions of the Russian Constitutional Court are ranked between constitutional rules and legislative rules. The rules coming from the Russian Supreme Court are ranked between the rules of law and the rules of by-laws. When it comes to the rules created by international courts, two important points must be taken into account. First, international courts, on the one hand, create new rules of international law based on other more general rules and principles. On the other hand, due to the lack of a clear hierarchy of rules in international law, such rules, unlike the norms of by-laws in Russian law, do not have a dependent (subordinate) nature. Second, the principle of the supremacy of the Russian Constitution over international regulations allows us to place international rules between the Russian Constitution and Russian laws. The authors considered that this approach makes it possible to integrate the new category of rules into the general regulatory system. The researchers found out that important characteristics of the rules created by the court are their subsidiary nature and retrospective nature. The rule-making freedom of the court is limited by other applicable legal rules. The court usually creates a rule only in cases where there are no other rules to govern the disputed legal relation. That is why the life of the rules created by the court is often short. When a legislative or executive body adopts another rule on the same issue, the previously created court rule is usually considered to be cancelled. The researchers came to the conclusion that Russian legal experts have no common opinion on the issue of the normative value of the legal provisions developed through the Resolutions of the Plenums of the Supreme Courts of the USSR and the Union Republics. Following a review of the content, we raised possible problems, strategies, suggestions and guidelines for the legal rules created by courts. The authors conclude that the analysis makes it possible to distinguish a special group of rules created by courts. This special group of rules is a regulatory reality that many experts in the field of general theory of law and international law have been paying attention to in recent decades. The authors conclude that the regulation of this area at the legislative level would greatly contribute to strengthening the principle of judicial practice unity. We also point out that the concepts of the legal position and of the rules created by the court can coincide only when the acts of higher judicial bodies are in question. If we consider the concept of the legal position in the broader sense used in practice, it becomes obvious that it also covers other aspects that are in no way rules. When it comes to similar concepts, for example, precedential rules and interpretative rules, they can be considered as varieties of the rules created by courts. The authors come to the conclusion that court decision references to the provisions fixed in the previously adopted judicial acts of the aforementioned judicial bodies have become the legal basis for making a decision. This means that the normative value of judicial acts has been recognized at the legislative level. Otherwise, there is no need for legislative provisions of this sort. The researchers encourage to recognize the phenomenon of a legal rule created by the court, and to differentiate it from other similar concepts used in jurisprudence. The closest to this category is the aforementioned concept of the court's legal positions. The research uses general scientific and special cognitive techniques wherein legal analysis and synthesis, systemic, formal-legal, comparative-legal, historical-legal and dialectical methods are applied.
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Lata, Natalya, Serhii Martyniuk, Tetiana Minka, Nadiya Ilchyshyn et Vitalii Yurakh. « Administrative and legal security of public information services in the activities of bodies of legislative and judicial power ». Cuestiones Políticas 40, no 72 (7 mars 2022) : 656–69. http://dx.doi.org/10.46398/cuestpol.4072.38.
Texte intégralRésumé :
The subject of the investigation is devoted to the problems of administrative and legal security of public information services. The main content characterized the essence of the security of public information services as a constituent element of the national security mechanism; in addition, a retrospective analysis of this notion was carried out and the current state of the normative regulation of its use was established. It is argued that the regulatory framework to guarantee the security of public information services is a distributed set of legislative and normative acts, whose current state requires the active promotion of processes of systematization of legislation to achieve the desired level of efficiency in the implementation of the right to information. Methodologically, a review of materials and methods based on the analysis of documents of the activities of the authorities in the field of security of public information services was carried out. By way of conclusion, se found that an official regulatory act "On Public Information Services" is required, in which the principles of operation of public administration bodies and their conceptual and systemic interaction must be enshrined.
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Ferraro, Tristan. « Enforcement of Occupation Law in Domestic Courts : Issues and Opportunities ». Israel Law Review 41, no 1-2 (2008) : 331–57. http://dx.doi.org/10.1017/s002122370000025x.
Texte intégralRésumé :
A review of the different occupation situations evidences that these situations are characterized by a poor record of compliance with the law of occupation. The international humanitarian law (IHL) conventional enforcement mechanisms have not been activated and compliance with the law has almost exclusively relied upon judicial processes. However, since enforcement of IHL through adjudication operates mainly under the principles of criminal individual responsibility, this course of action has been of little relevance for occupation law insofar as the latter contains only few provisions the violations of which amount to graves breaches of IHL or other serious violations thereof. Disrespect for occupation law barely gives rise to criminal proceedings and therefore excessive focus on the latter procedures constitutes an impediment to the effective enforcement of this corpus juris. In addition, actual IHL mechanisms designed to induce compliance with occupation law do not allow for the appropriate control of the administrative and legislative acts of the occupant. In light of the contemporay forms of occupation and the tendency to broadly interpret the powers conferred on the occupant by IHL, administrative and legislative acts of the occupant should not be left without legal review. The present Article investigates the role and legal entitlement of different domestic courts in this respect after having previously examined the obstacles to exercise of jurisdiction by domestic courts with regard to the measures undertaken by the occupant within the framework of Article 43 of The Hague Regulations of 1907. The author argues that, despite their usefulness, domestic courts do not actually provide an appropriate course of action for legal review of the administrative and legislative measures promulgated by the occupying power.
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Koban, O. G. « Interpretation of law by the court as an element of legislation ». INTERPRETATION OF LAW : FROM THE THEORY TO THE PRACTICE, no 12 (2021) : 153–64. http://dx.doi.org/10.33663/2524-017x-2021-12-26.
Texte intégralRésumé :
The article examines the problem of the essence and content of judicial interpretation, its characteristic features. The goal of a casual court interpretation is the correct understanding of the content of the norms of law, and the task is to individualize legal regulations. Acts of casual court interpretation are «samples» for lower courts, given that they are always guided by the practice of interpretation. The article also deals with the theoretical aspects of the institute of interpretation of law by court, its gist, and legal nature; explores the views of the Ukrainian and foreign scientists on the subject. The article also deals with relevant to modern legal practice issues of judicial interpretation. The peculiarity of the casual interpretation is that it has a person-oriented character and is relevant to specific circumstances. A casual interpretation can not go beyond the boundaries of a particular legal case and apply to similar cases. The difference between the normative interpretation and the casual is that the former may extend to an unspecified range of cases, and the second one to the incident that was the subject of a dispute. Subjects of casual interpretation are the judicial and administrative bodies. Clarification of the content of the law by the judiciary is a judicial interpretation. The official constitutional interpretation of the Constitutional Court of Ukraine is carried out in providing opinions on cases of constitutionality of laws and other legal acts, compliance with the Constitution of Ukraine of international treaties, adherence to the procedure of investigation and consideration of the case of removal of the President of Ukraine from office in the order of impeachment. The supreme court’s interpretation of the case largely influences judicial practice. Courts, in court cases, carry out a casual interpretation of the rules of law and develop case-law on the application of the rules of law. The casual judicial interpretation is the interpretive activity of the court in the process of reviewing and resolving court cases (or in the order of their review by the appellate or cassation instances), the purpose of which is a correct understanding of the content of the legal norm. His task is the individualization of legal requirements, and the result is binding only for a specific court case and parties involved in it. The acts of the casual interpretation of the higher judicial bodies are «samples» for lower courts, given that they are always guided by the practice of interpretation and application of the law by the highest judicial authorities and, as a rule, follow it. Characteristic features of the casual judicial interpretation is that its subjects are judges of all courts, it is directed at the consideration and resolution of a particular court case, the results of such an interpretation are binding only for the parties to a specific court case and are fixed in the motive part of the decision. Keywords: court, casual interpretation, the rule of law, judicial interpretation, rule.
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Wójcicka, Ewa. « Access to a Court in Matters Concerning Disputes of an Individual with the Public Administration in the Republic of Poland vs. the Standards of the Council of Europe ». International and Comparative Law Review 16, no 1 (1 juin 2016) : 111–25. http://dx.doi.org/10.1515/iclr-2016-0008.
Texte intégralRésumé :
Summary This paper focuses specifically on the fundamental part of the right to a fair trial, namely access to a court. The aim of this article is an attempt to analyse the difference between the requirements of European standards and how they are reflected in Polish legislation. First of all, I am going to analyze basic European standards specified in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, Recommendation Rec(2004)20 on the judicial review of administrative acts and in the jurisprudence of the European Court of Human Rights. Then I will focus on selected aspects of the problem of judicial review of administrative acts specified in the Act of 30th August 2002 Law on Proceedings before Administrative Courts. I will discuss several specific topics from this field, which can be considered as crucial in relation to access to court, namely: definition of terms for access to justice by an individual, exhausting administrative remedies before judicial review, locus standi and legal aid.
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Osipov, A. L. « Topical Issues of Application of Decisions of Interstate Human Rights Bodies in Criminal Proceedings of the Russian Federation ». Lex Russica 76, no 3 (24 mars 2023) : 72–86. http://dx.doi.org/10.17803/1729-5920.2023.196.3.072-086.
Texte intégralRésumé :
The paper deals with the implementation of international standards for the protection of individual rights in criminal proceedings consolidated in the decisions of judicial and quasi-judicial intergovernmental human rights bodies. The author gives a characteristic of the main stages of interaction of the legal system of the Russian Federation with the system of international standards, perceived through the practice of the ECHR. The paper examines features of the execution of the ECHR acts after the Russian Federation withdrew from the Council of Europe. The article analyzes the legal foundations of the activities and legal properties of acts of quasi-judicial bodies of the United Nations in the context of the grounds for reviewing national judicial decisions in criminal cases. On the basis of Russian judicial practice, the legal model of sentence review based on international judicial and quasi-judicial acts is analyzed: the stable characteristics of this model are determined, the patterns of implementation of acts of quasi-judicial bodies of the United Nations in Russian judicial practice in criminal cases are described, the factors requiring improvement of this model are analyzed. It is concluded that the existing model of regulation of these relations is based on insufficiently clear provisions of the Criminal Procedure Code of the Russian Federation in their interpretation by the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation. This model does not fully take into account the specifics of individual legal acts of interstate human rights bodies. In conclusion, the article proposes the author’s concept of the reform of the model of resuming criminal proceedings in connection with these acts of interstate human rights bodies. As one of the conclusions, the paper notes that at the present stage of the development of criminal procedure, legislation and the practice of its application in the Russian Federation, the issues of implementation in domestic law of international human rights treaties through the execution of decisions of their control (judicial and quasi-judicial) mechanisms with competence to consider individual reports of victims of alleged violations of these treaties remain relevant.
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Chetvernina, A. V. « JUDICIAL AND NON-JUDICIAL PROTECTION IN THE CONTEXT OF THE MULTI-LEVEL ADMINISTRATIVE SPACE OF THE EUROPEAN UNION ». Pravovedenie IAZH, no 4 (2021) : 69–80. http://dx.doi.org/10.31249/rgpravo/2021.04.05.
Texte intégralRésumé :
The review is based on the publications of a series of articles in a special issue of the German Law Journal (German law journal. 2021. Vol. 22, N 3). It examines the complex of judicial and non-judicial problems that arise in the complex multi-level administrative structure of the EU. The main focus is on mechanisms of horizontal and vertical administrative cooperation, as well as new regulatory models that «generate» transnational administrative acts and mutual recognition systems, as well as multi-level inspection activities carried out to ensure compliance with EU legislation.
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Mirbek A., Khagazheev. « Features of the innovations in the law enforcement activities of the Gorsky verbal courts of the Terek region in the 90s of the XIX century ». Kavkazologiya 2024, no 1 (30 mars 2024) : 71–82. http://dx.doi.org/10.31143/2542-212x-2024-1-71-82.
Texte intégralRésumé :
The article focuses on the unique characteristics of the introduction of innovations in the law en-forcement activities of the Terek region’s mountain verbal courts in the 90s of the XIX century. The channels and mechanisms for obtaining information by courts on innovations in normative acts and their interpretations from the relevant authorities on the results of law-making activities in the field of judicial proceedings for consideration in their activities are characterized. For this purpose, copies of normative acts of the highest imperial authorities, rules and instructions on conducting individual investigative and judicial actions, orders of the Terek district authorities, copies of reviews from the head of the Terek region and the prosecutor of the Vladikavkaz District Court, etc. were considered. A list of areas in which the SCS received information about their ju-risdiction in the late nineteenth century is proposed. The procedure for internally discussing and putting legislative innovations into practice is considered. It is concluded that all of this allowed them to effectively interact with law-making organizations and apply current changes in regula-tions to their activities.
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Лазарев, Валерий, Valyeriy Lazaryev, Дмитрий Фурсов et Dmitriy Fursov. « Establishing Nature of Law in Judicial Decisions ». Journal of Russian Law 4, no 5 (4 mai 2016) : 0. http://dx.doi.org/10.12737/19086.
Texte intégralRésumé :
The problem of establishing the nature of law has deep theoretical roots, because no one can reveal the phenomenon of law. In spite of various scientific aspects of this concept, in practice it is necessary to recognize its role as a single tool. The authors conclude that the court is not only the subject of the interpretation of the jus, not only the enforcer or entity conflict resolution relationship, it introduces its own innovations to the search for justice, it is the creator of the law. The article substantiates the role of the court not only as a guarantor of the existing legal system, but also as an institution imperatively harmonizing the system. The relevance of the study is explained by the fact that the establishment of the nature of law, even in the acts of the Constitutional Court of the Russian Federation is a very complex problem, which has not been adequately investigated, especially with regard to court’s decisions. But all courts create the “living law”. Without the will of the state, no law is possible, but the jus does not embrace the whole law and the latter always takes priority over the jus. Transformation of a legal activity in the aspect of searching for the law is necessary for all judicial authorities. If the first instance courts shut themselves within the framework of the law, their mission will be extremely limited. They won´t even be able to outline the legal boundaries, where the authorized review judicial authorities and persons involved in the case could in-depth study, evaluate the circumstances associated with the search for and finding of the most justified solution. The authors believe that the law revealed in court decisions, forms the foundation of the rule of law and therefore requires additional account as an important information resource, necessary for the formation of unified law enforcement, for its use by a legislator for the purpose of implementing the models of legal relations, as reflected in the decisions, into legislative acts.
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Enonchong, Laura-Stella. « International Constitutional Law and Judicial Review of Domestic Human Rights Legislation ». ICL Journal 13, no 2 (25 septembre 2019) : 87–118. http://dx.doi.org/10.1515/icl-2018-0064.
Texte intégralRésumé :
Abstract This article discusses the idea of international human rights law as ‘constitutional law’. It applies the French concept of Le contrôle de conventionnalité des lois, to demonstrate the constitutional potentials of international human rights law in the domestic sphere. In most monist constitutional systems based on the French civilian model, international law takes precedence over acts of parliament and other domestic legislation. Due in part to that hierarchy, conventionnalité permits the courts to review domestic law for compatibility with international law. From that perspective, international human rights norms can be said to have assumed a ‘para-constitutional’ function. Using two case studies from francophone Africa, this article argues that conventionnalité has the potential to play a significant role in the domestic implementation of international human rights and ultimately contributing to a more comprehensive domestic human rights regime.
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Власенко, Николай, Nikolay Vlasyenko, Максим Залоило et Maksim Zaloilo. « Concretization and Interpretation of Law as the Creative Content of Judicial Practice ». Journal of Russian Law 4, no 8 (8 août 2016) : 0. http://dx.doi.org/10.12737/20902.
Texte intégralRésumé :
The article explains the idea of interpretation and concretization of law as the creative content of judicial practice. It contains a review of the main positions of national legal science on the content, forms and significance of judicial practice. The author deals with the issues relating to possibilities of recognition of the court practice as an independent source of law. The legal nature of the judicial act contains the assessment of the subject of it’s regulatory novelty. Subject to analysis is the impact of judicial practice on law-making in modern conditions in the form of drafting in the process of interpretation and concretization of law an abstract rules, which may obtain further its legislative development in the rules of law. The idea of the creative content of judicial practice is based on the legal uncertainty which determines the creative nature of interpretation and concretization of law by judicial organs and the regulatory character of the results of interpretation and concretization of law. The process of interpretation of law is presented sequentially in three stages: understanding, clarification and development. The creative nature is inherent in the results of the judicial practice which generated at the stage of development of rules of law. The authors examines concretization of law which is performed by judicial organs (concretization of rules of law of general character; concretization of concepts contained in rule of law (terminological enforcement concretization); concretization of rules of law in the presence of gaps in normative legal acts). The analysis of the creative character of interpretation and concretization of rules of law in judicial practice emphasizes general and special characteristics thereof.
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Serkov, P. P., et Yu P. Solovey. « Administrative Discretion : Questions and Answers (Part 1) ». Siberian Law Review 19, no 4 (8 janvier 2023) : 374–83. http://dx.doi.org/10.19073/2658-7602-2022-19-4-374-383.
Texte intégralRésumé :
This material opens a series of scientific publications planned by the editors of the Siberian Law Review journal, the Authors of which analyze the problem of administrative discretion (discretion), which is very relevant for Russian administrative legal theory and law practice, in the “question-answer” format. The scientific, theoretical and practical significance of the noted problem is predetermined by the fact that the exercise of discretionary powers by the public administration (as opposed to powers strictly bound by law) is fraught with the greatest threat to the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of organizations. The purpose of the study is to clarify issues related to the concept and essence of administrative discretion, its regulatory legal framework, forms of implementation, ways to establish the limits of discretion of public administration, criteria for assessing the legality of discretionary administrative acts, judicial and agency control over administrative discretion. The subject of the research is normative legal acts, legal principles, administrative and judicial acts, scientific works of Russian and foreign legal scholars. The hypothesis of the study is that, despite the abundance of scientific publications on administrative-discretionary topics, the domestic doctrine of administrative discretion is a motley mixture of judgments that do not agree with each other, often divorced from the needs of administrative and judicial practice, characterized by the absence of a single categorical apparatus. According to Yuri P. Solovey, an important, if not the most important section of administrative discretionary issues, are the limits of judicial control over administrative discretion, which has practically fallen out of the field of view of Russian scholars, despite the fact that it has been thoroughly studied abroad for more than a century and a half. From the point of view of Petr P. Serkov, the domestic science of administrative law has not yet properly answered three fundamental questions, namely: what is administrative discretion, what is it intended for and how is it carried out. The Authors of the publication are unanimous that such a “doctrine” of administrative discretion does not contribute to the development of legislative solutions to bring such discretion to the standards of a legal, democratic state. In the process of research, dialectical, formal-logical, formal-legal, comparative-legal methods of cognition, the method of interpreting law, analysis of materials from administrative and judicial practice are used. The Authors attempt to streamline the categorical apparatus of the theory of administrative discretion, as well as to formulate its main provisions and some proposals for improving the current legislation.
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Shugrina, Ekaterina S., et Roman V. Petukhov. « Monitoring of judicial practice in the field of prevention and settlement of conflicts of interest in the municipal service ». Law Enforcement Review 2, no 1 (12 avril 2018) : 141–53. http://dx.doi.org/10.24147/2542-1514.2018.2(1).141-153.
Texte intégralRésumé :
Subject. The article is devoted to enforcement the rules concerning conflicts of interest in the municipal service.The purpose of the article is to identify approaches to resolution of legal disputes concerning conflict of interest in the municipal service.Methodology. The authors use theoretical analysis as well as legal methods including formal legal analysis and the method of linguistic interpretation of judicial acts.Results, scope of application. The courts examine a different range of issues: the concept of conflict of interest, personal interest; features of admission to service; application of measures of responsibility; dismissal from service (termination of employment or service relations) – during the legal consideration of cases related to the presence and absence of a conflict of interest.The courts apply similar approaches to the conflict of interest in the state and municipal services, despite the fact that state and municipal employees have significant differences in legal status and different legislative acts are applied to each type of service.The Constitutional Court of the Russian Federation has repeatedly resolved the disputes concerning the issues of conflict of interest.Courts of general jurisdiction resolve such cases mostly in the order of action proceedings. However, the courts are also ought to investigate issues related to the conflict of interest when considering disputes arising from public legal relations when challenging normative legal acts. The attempts of local authorities to change the wording, to go beyond the norms established in Federal legislation are the most common violation.Conclusions. Although the legal positions of the Supreme Court concerning conflict of interest are generally quite consistent, courts at other territorial levels may have different positions on such situations. Therefore, we should welcome the preparation by the Supreme Court of the Russian Federation of A review of court practice in 2014-2016 concerning enforcement legislation of the Russian Federation in disputes related to the imposition of disciplinary sanctions for non-compliance with the requirements of anti-corruption legislation.
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Biyebayeva, A. A., А. М. Kalguzhinova et А. T. Zhumasheva. « Revisiting the improvement of the criminal legislation of the republic of Kazakhstan on liability for the murder for hire ». Bulletin of the Karaganda University “Law Series” 100, no 4 (30 décembre 2020) : 58–67. http://dx.doi.org/10.31489/2020l4/58-67.
Texte intégralRésumé :
The article is concerned with consideration of the signs of murder for hire, the identification of types of accomplices in the commission of murders for hire, the concept of hiring in the commission of a killing, the social grounds for increasing responsibility for these circumstances qualifying the killing. The authors carried out a historical and legal analysis of the customary law of Kazakhs, Soviet and modern domestic criminal legislation regulating responsibility for murders. The bases of differentiation of criminal responsibility for aggravated killing have been determined. The concept and signs of the composition of murder for hire are analyzed, the reasons for the imperfection of the legislative formulation of this aggravating sign are revealed. The empirical basis of the study is composed of the statistical data of the Committee on Legal Statistics and Special Records of the General Prosecutor's Office of the Republic of Kazakhstan, analytical reviews, generalizations of judicial practice, published judicial practice of consideration of criminal cases on murders, as well as materials of criminal cases, acts of the «Taldau» forum, intended to ensure monitoring the quality of judicial acts, analysis of the results of the current activities of the courts, information support for litigants, practicing lawyers, use in scientific and research activities. The reliability of the obtained results is determined by the research methodology, analysis of theoretical and practical data. Studying the issues of correct legal assessment and effective prevention of the murder for hire, analysis of the ways of legal expression of this feature in the norm of criminal law constitute an important direction in the development of criminal law theory, designed to ensure the transition from the empirical basis of legal education to scientific one.
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Sriwiyanti, Sriwiyanti, Wahyu Saefudin et Siti Aminah. « Restorative Justice for Juvenile Offenders in Indonesia : A Study of Psychological Perspective and Islamic Law ». JIL : Journal of Islamic Law 2, no 2 (4 août 2021) : 168–96. http://dx.doi.org/10.24260/jil.v2i2.335.
Texte intégralRésumé :
Regulations on handling criminal children in Indonesia refer to restorative justice that prioritizes the most beneficial for children’s future. However, the number of child perpetrators of criminal acts whose handling through the judicial process is relatively high. This study aims to describe and analyze the application of restorative justice in Indonesia and acknowledge the psychological conditions and stages of adolescent development involved in criminal acts. In addition, this study also considers from an Islamic Law perspective. This paper is a literature review using legislation, journals, and books as primary data described descriptively. This study reveals that children aged 12-18 years are immature emotionally and cognitively and experience turbulent changes from various aspects that cause children to commit criminal acts. Thus, managing through the diversion mechanism is prioritized over the judicial process. The diversion mechanism regulating juvenile perpetrators of criminal acts aims to restore relationships, children’s best advantages and protect children’s rights based on restorative justice. The author argues that punishment for children must consider the child’s ability to take responsibility for the cases committed, not as revenge for the violations committed.
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Sychev, Semen. « Law-Making and Law Enforcement of Civil Rights and Freedoms : Constitutional and Legal Aspects ». Bulletin of Kemerovo State University. Series : Humanities and Social Sciences 2022, no 1 (21 février 2022) : 64–74. http://dx.doi.org/10.21603/2542-1840-2022-6-1-64-74.
Texte intégralRésumé :
The author raises the question of improving the activities of public authorities that comply with the orders of the Constitutional Court of the Russian Federation. The research featured various issues related to the implementation of constitutional justice and their possible solutions. The study revealed the following needs: 1) to adjust the Federal Constitutional Law on the Constitutional Court of the Russian Federation to time-limits for State Duma draft laws; 2) to return the extraordinary adoption of bills in pursuance of decisions of the Constitutional Court of the Russian Federation; 3) to develop a scheme for the practical enforcement of judicial acts; 4) to expand the functions of the Ministry of Justice of the Russian Federation and its regional structural divisions by including normative legal acts of the subjects of the Russian Federation and acts of their constitutional and judicial review in the sphere of legal monitoring; 5) to develop a special system for informing about decisions taken by the Constitutional Court of the Russian Federation to verify the laws of the subjects of the Russian Federation; 6) to improve criteria and procedures for recognizing regional normative legal acts as similar to provisions of law subjected to constitutional normative control; 7) to provide the Prosecutor's Office with powers to supervise the execution of decisions of the Constitutional Court of the Russian Federation; 8) to amend the Constitution of the Russian Federation and indicate the authority of the Constitutional Court of the Russian Federation to determine the executive body; 9) to change the regulatory and legal regulation aimed at expanding the mandatory powers of the Commissioner for Human Rights in the Russian Federation; 10) to specify the term of political activity with its current broad interpretation. The article also contains some recommendations aimed at improving the legislative regulation in the sphere of protection of civil rights and freedoms in modern Russia.
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Macxel, Albus Samuel. « The Administrative Authority of Belgian Law in the Europe Modern Political’s Perspective ». Jurnal Daulat Hukum 6, no 2 (16 juin 2023) : 91. http://dx.doi.org/10.30659/jdh.v6i2.31184.
Texte intégralRésumé :
This research aims to know that since 1831, the Belgian Constitution allows courts to not apply unlawful administrative acts. This power, established as an obligation by the Supreme Court of Appeal, is called “plea of illegality”, and is guaranteed by Article 159 of the Constitution, which states that “the courts and tribunals shall not apply the provincial and local decrees and general regulations, until they comply with the laws. This research used library/literature research technic. The administrative high court also has the jurisdiction to issue non-binding opinions on the preliminary drafts of regulatory orders of the various federal State governments (federal, regional and community governments). This ex ante review, also carried out with regard to the preliminary drafts of legislative texts, is carried out by the legislative section of the Council of State. In 1991, the Council of State was vested with additional powers as litigants could apply, in summary and interim proceedings, for suspension of the execution of administrative acts, firstly in case of risk of serious irreparable harm, and since 2014, in case of emergency. The result show that last constitutional revision of 2014 tempered the monopoly of the judicial courts in litigation involving civil rights, with the Constitution stipulating that the Council of State has the jurisdiction to rule on the civil effects of its annulment judgments (Const. Art. 144 (2)). It can henceforth award a “restorative allowance” to any litigant who has suffered the effects of the annulled administrative act (consolidated acts on the Council of State, Article 11 bis). It may also indicate the measures to be taken to remedy the illegality sanctioned by its annulment judgments and, if the annulment implies that the authority takes a new decision, it may prescribe a time limit for doing so (consolidated acts, Art 35/1 and 36, 1st).
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Новгородцев, Виктор, et Viktor Novgorodtsev. « Analysis of legal acts on combating corruption in Ukraine ». Services in Russia and abroad 9, no 1 (25 juin 2015) : 14–23. http://dx.doi.org/10.12737/11704.
Texte intégralRésumé :
The article presents an analytical review of the new legislation adopted in Ukraine, which reflects the main directions of the reform in the field of legislation in the organs of public service and local government, as well as addresses the issues of financial accountability of political parties to ensure reviewing anti-corruption programs in the structure of state bodies, carrying out monitoring in the field of public procurement, amendments to the judicial system and the criminal justice agencies, ensuring free competition and the establishment of responsibility for bribery for persons working in private companies. According to the results of the analytical review it can be concluded that the country has adopted a number of innovations: created the National Agency, which is addressing issues in the field of prevention of corruption as a central executive body with special status; formed a list of specific restrictions on the use of official position in the preparation of gifts; limited capacity of public servants, the leading career concurrently; introduced regulated fundamental rules of ethical conduct for civil servants; strengthened financial control (paying special attention to providing the declaration of income); the legislator specified persons having authority to assist in the fight against corruption; conducted special checks of candidates applying to practice high-level government posts.
Based on the analysis of new laws adopted in Ukraine, the author marked obstacles to the effective fight against corruption in the country, the main ones are corruption in public procurement, the judiciary and criminal justice authorities in the activities of executive bodies in the private sector, as well as the virtual absence of responsibility for bribery of persons working in private companies, special forfeiture rules for all corruption-related crimes, guaranteeing the protection of corruption whistleblowers and the unified state register of legal persons involved in corruption.
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Bailey, Jeremy D. « Constitutionalism, Conflict, and Consent : Jefferson on the Impeachment Power ». Review of Politics 70, no 4 (2008) : 572–94. http://dx.doi.org/10.1017/s0034670508000776.
Texte intégralRésumé :
AbstractA problem within liberal constitutionalism is determining whether the majority actually consents to its government, and, in particular, to those extraordinary acts that take place in the silence of the law. This paper explores this problem in the U.S. context by presenting Thomas Jefferson's understanding of the impeachment power. Jefferson preferred a theory of impeachment that, like his theory of coordinate review, would allow each department to participate in the impeachment process, because he believed that executive participation would improve the law bringing its own character, or will, to it. As an alternative to the more common political understanding of impeachment, which leans toward legislative exclusivity, and the dominant legal understanding, which tends toward judicial finality, Jefferson's theory offers a way for the people to judge whether a particular act of lawlessness is in the public good.
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Kustov, S. S. « Discretionary Administrative Acts of Territorial Planning and Urban Development Zoning of Municipal Entities ». Siberian Law Review 21, no 1 (3 octobre 2023) : 39–50. http://dx.doi.org/10.19073/2658-7602-2024-21-1-39-50.
Texte intégralRésumé :
The paper analyzes the legal regulation of the limits of public authority discretion in territorial planning and urban development zoning of municipal entities, defines the limits of judicial control over bills issued by the relevant authorities. Due to comparative legal method we determine that the common feature for Great Britain, Germany and Russia is rather a broad discretion of authorized bodies in doctrine and practice as for planning, which, however, does not exclude control over issued planning acts. In Russia the powers of the bodies regarding preparation and approval of the documents of territorial planning and urban zoning of municipal entities are of discretionary nature. When issuing such acts, the body exercises the freedom of discretion, resulting from the lack and impossibility to define all legal conditions to adopt planning acts. It is noted that the decisions of public authorities, which enact these documents are the variation of discretional planning acts. In comparison to the practice of the Supreme Court of Russia and the courts of general jurisdiction, the local governing body has a broader discretion in regards of the discussed issues. Discretionary nature of such acts does not exclude evaluation of the limits of body’s discretion. The paper concludes that the restrictions of the directorate of the body, while issuing acts of territorial planning and urban development zoning of municipal entities and the possibility of their judicial review are due to the requirements to ground the adopted act by the body, as well as the restrictions of the powers of the body that issued the act. In Russia, the mentioned requirements are partly formalized in the legislation, some of them became judicial practice. Generalized judicial practice demonstrates that acts of territorial planning and urban development zoning of municipal entities result from the requirement to justify the adopted city design and the pursuit of the public goal by the body issuing the act. Normal judicial control of such decisions includes evaluation of the act from the point of legality. In some disputes, courts build their arguments based on the principles of legal certainty, proportionality and trust defense.
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Andreev, V. K. « Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities ». Rossijskoe pravosudie 6 (26 mai 2021) : 27–32. http://dx.doi.org/10.37399/issn2072-909x.2021.6.27-32.
Texte intégralRésumé :
The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).
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Onyshchuk, I. I. « The Impact of Judicial Practice on Legislative Transformation : the Law-Making Role of Constitutional Control of the US Supreme Court ». TRANSFORMATION LEGISLATION OF UKRAINE IN MODERN CONDITIONS DOCTRINAL APPROACHES AND MEASUREMENTS, no 14 (1 septembre 2023) : 75–80. http://dx.doi.org/10.33663/2524-017x-2023-14-75-80.
Texte intégralRésumé :
The purpose of the article consists in the characteristics of the constitutional control of the US Supreme Court as a form of judicial law-making from the point of view of general scientific, philosophical, theoretical-legal and practical positions. The novelty of the article consists in characterizing the law-making role of judicial practice of the Anglo-Saxon legal system and its comparison with the development of judicial practice in the Romano-Germanic legal system. It was found out that the mechanism of judicial law-making was formed in the USA under the influence of the rule of precedent inherited from English practice – stare decisis. And this led to court decisions becoming the most important source of law. It is argued that the American model of judicial constitutional control, the elements of which are borrowed and used in some European countries, is effective in conditions where proper interaction between specialized bodies (for example, the constitutional court) and courts of general jurisdiction is not established. It is shown that, according to the American model, the review of constitutional issues is carried out decentralized (by all courts), and according to the European model, it is centralized (by the body of constitutional control). Constitutional control in the USA is not limited to negative law-making. The task of the Court is to ensure the supremacy and direct effect of the Constitution on the entire territory of the state and in relation to all subjects of law. That is why constitutional control also includes positive law-making, which results from the interpretation of legislative norms or the encouragement of legislatures to create new norms. However, this does not mean at all that the judicial power encroaches on the functions of the legislator or somehow puts him in a dependent position. In the USA, the Constitution’s precept, according to which the branches of government must be separated from each other, remains inviolable. But at the same time, their interconnection and interaction is not denied. The author came to the conclusion that one of the directions of judicial control, which shows the formal side of law-making, is its implementation in “negative” and “positive” form. At the same time, the Supreme Court of the United States, canceling any law in full or in a certain part, i.e. actually carrying out “negative law-making”, creates the prerequisites for the creation of a new rule of law, which should fill the gap. Constitutional control in the USA is a form of law-making activity of the Supreme Court of the USA with the aim of protecting the foundations of the constitutional system, the basic rights and freedoms of a person and a citizen, ensuring the supremacy and direct effect of the Constitution, as well as preventing the emergence of unconstitutional acts in the legal system. Key words: legal system, law-making process, judicial practice, constitutionalism, supremacy of the Constitution, stare decisis.
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Nematov, Jurabek. « "RECENT REFORMS AND NEW ADMINISTRATIVE COURT SYSTEM IN UZBEKISTAN : CASE STUDY OF IMPLEMENTATION OF NEW LAWS" ». Tsul legal report 2, no 1 (16 juillet 2021) : 43–63. http://dx.doi.org/10.51788/tsul.lr.2.1./rhwm9626.
Texte intégralRésumé :
"Judicial protection against individual and normative acts of the public administration continues to be problematic in Uzbekistan. One central reason for this issue is the continuing prevalence of Soviet-style ideas and patterns in legal thinking, as well as legal practice. This article describes the problems that jurisdictions encounter in trying to overcome their Soviet heritage by developing legal protection in administrative matters, and analyses the strategies for the improvement of this situation. In this regard, there is a common perception in post-Soviet countries that citizens are allowed to appeal against the administrative penalty that was imposed after disobedience against a certain administrative act, rather than directly appeal to the court against the administrative act before an administrative penalty. Therefore, it is quite difficult to develop administrative justice without changing the misperception in the understanding of administrative offences as a part of administrative justice in Uzbekistan. Importantly, the recent reforms taking place in Uzbekistan give big hope to develop administrative justice without including administrative offence cases. It is a positive move in the context of post-Soviet countries that administrative justice has been delinked from traditional Soviet administrative offence cases. Relevantly, this paper explores (1) the main reforms held on judicial review over administrative acts in today’s Uzbekistan, and (2) transformation points of judicial review. Overall, I argue that Soviet thinking on judicial review of administrative acts has a big change in the legislation level under the new regime of Uzbekistan. However, legal reforms are still not accepted by legal practice, doctrine, and legal education. Based on this, it should be emphasized that the development of the administrative law theory in Uzbekistan is important: in particular, the need to maintain the relationship between theory and court practice through constant analysis of court decisions in the field of administrative law; the importance of training legal personnel based on a case study of researching administrative court decisions; the importance of developing substantive administrative law; and developing new areas of positive administrative law."
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Tulejski, Tomasz. « THOMAS JEFFERSON PRZECIWKO „POLITYKOM W TOGACH”. KILKA UWAG DOTYCZĄCYCH SPORU O KIERUNKI INTERPRETACJI KONSTYTUCJI STANÓW ZJEDNOCZONYCH ». Studia Iuridica, no 95 (14 juin 2023) : 527–52. http://dx.doi.org/10.31338/2544-3135.si.2022-95.30.
Texte intégralRésumé :
Throughout the first decade of the American republic, competing claims between the Federalists and the Anti-Federalist (later Republicans) regarding the proper interpretation of the Constitution and the application of its principles were confined primarily to the executive branch, Congress and states. The year 1801 marked the beginning of a turnabout in the role of the Supreme Court in the national affairs. Thomas Jefferson, having promised to bring about a revolution in the principles guiding the government, took office as the third president of the young nation. Although the legislative and executive branches of government came under the control of Jefferson’s Republican party in the election of 1800, the federal judiciary remained a bulwark of the rival Federalist party. In this article the author argues that differences in the interpretation of the Constitution resulted from the clear and irreconcilable differences in the political and constitutional philosophies of Jefferson and Marshall. These differences sparked fierce debate over such monumental issues as the use of judicial review over acts of Congress and the development of the doctrine of implied powers. According to the author, political considerations were paramount in determining the tactics employed by both leaders in their efforts to define the proper role of the judiciary in a balanced government and the role of the national government itself within the federal system.
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Raso, Jennifer. « Accessible Information and Constitutional Democracy : Who Counts ? » Constitutional Forum / Forum constitutionnel 25, no 3 (21 novembre 2016) : 67. http://dx.doi.org/10.21991/c9s96g.
Texte intégralRésumé :
Accessible information is an essential resource for equal, meaningful participation in the public life of a democratic society. Such information is particularly vital for the effective functioning of all three branches of government in our constitutional democracy: the administrative branch, which creates government policy and holds state actors accountable to the public; the legislative branch, which scrutinizes old and creates new legislation; and the judicial branch, which reviews the acts of the legislative and executive branches. For the law-reform processes of each branch to effectively foster the informed creation and critique of public law and policy, we require reliable, accessible data depicting the diversity of individuals who make up the broader Canadian public.Beyond this practical purpose, accessible information plays an expressive role as it constitutes a particular notion of the Canadian public. The data created by national population censuses and assembled in welfare reports has the power to “nominat[e] into existence” certain groups of people and, conversely, to “refus[e] to name” others. Such information not only represents the public, it also creates the public, as it stands in for the public at all levels of government. By communicating who we are as a society and how we are changing, census information and welfare reports shape our understanding of ourselves — our laws, policies, government, and place in the world.
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Bagylly, Safura T., et Larisa N. Pavlova. « JURISDICTION OF APPLICATIONS FOR THE REVISION OF JUDICIAL ACTS ON NEWLY DISCOVERED OR NEW CIRCUMSTANCES AND THE PROCEDURAL AND LEGAL CONSEQUENCES OF ITS VIOLATION ». RUDN Journal of Law 24, no 4 (15 décembre 2020) : 1141–68. http://dx.doi.org/10.22363/2313-2337-2020-24-4-1141-1168.
Texte intégralRésumé :
The article deals with the problematic items of choosing a court competent to review court decisions that have entered into legal force on newly discovered or new circumstances in civil and administrative proceedings. The aim of the authors is to conduct a study of the legal regulation of the jurisdiction of applications for review. The methodological basis of the article was formed by general scientific (analysis, analogy, description, synthesis, and systemic approach) and particular scientific methods (historical-legal, comparative-legal, and formal-legal). A retrospective analysis of legal acts of domestic legislation has been carried out. According to the results of the study, difficulties relate to interpreting and applying the existing rules on determining the appropriate instance for revision. Based on the analysis of the judicial practice of courts of general jurisdiction and arbitral courts, the authors come to the conclusion that there is no unified approach of the courts in determining the procedural and legal consequences of violations of the rules of jurisdiction. The conclusion summarizes proposals for improving the current legislation to eliminate ambiguities and achieve uniformity in judicial practice.
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Nizamieva, O. N. « INDIVIDUAL LEGAL ACTS OF THE SUPREME COURT OF THE RUSSIAN FEDERATION ON FAMILY DISPUTES CONCERNING PROPERTY ». Lex Russica, no 12 (4 janvier 2020) : 19–27. http://dx.doi.org/10.17803/1729-5920.2019.157.12.019-027.
Texte intégralRésumé :
The article has analyzed the jurisprudence of the Supreme Court of the Russian Federation on family disputes that involve property issues, revealed features of implementation of functions of the highest court in this field. First, it is stated that the Supreme Court of the Russian Federation reviews decisions of lower courts mainly in cases where the application of family law rules is contradictory and unsettled. It is necessary to fill in a gap in family law, to resolve conflicts between certain legal norms, to choose between several possible interpretations of the law. Second, the judicial panels of the Supreme Court of the Russian Federation, making a determination on a particular case, clarify the meaning of legal norms, and sometimes under the guise of interpretation in fact correct ill-considered or outdated norms of family law. Third, the High Court reviews cases where there is a typical and widespread error in the application of a very clear and defined rule. Fourth, in individual legal acts it is possible to observe the concretization or change of the previously designated legal stances while maintaining the legislative rules in the same form. Using certain examples of cases considered by the Supreme Court of the Russian Federation on family disputes concerning property, the paper has demonstrated the mechanism of possible transformation of abstract, non-personified and doctrinally oriented provisions contained in the definitions of judicial boards of the Supreme Court to general legal regulators. The author has determined certain problems of legal regulation of property relations in the family that have not been settled by the Supreme Court of the Russian Federation.